Playing with Fire

Every once in a while, I read something that makes me want to pound my head against the nearest wall.

A few days ago, this was the “something.”

The article addressed the dogged determination with which Republicans in Congress have opposed any and every proposal coming out of the Obama White House–even, as we have seen, proposals that had originally been theirs.

That strategy was eventually articulated publicly by former Republican Congressional staffer Mike Lofgren.

A couple of years ago, a Republican committee staff director told me candidly (and proudly) what the method was to all this obstruction and disruption. Should Republicans succeed in obstructing the Senate from doing its job, it would further lower Congress’s generic favorability rating among the American people. By sabotaging the reputation of an institution of government, the party that is programmatically against government would come out the relative winner.

…There are tens of millions of low-information voters who hardly know which party controls which branch of government, let alone which party is pursuing a particular legislative tactic. These voters’ confusion over who did what allows them to form the conclusion that “they are all crooks,” and that “government is no good,” further leading them to think, “a plague on both your houses” and “the parties are like two kids in a school yard.” This ill-informed public cynicism, in its turn, further intensifies the long-term decline in public trust in government that has been taking place since the early 1960s – a distrust that has been stoked by Republican rhetoric at every turn.

I know this is an era of exceptionally strong partisanship. I also know that both parties routinely engage in behaviors that do not serve the common good.

But I also know–and there is ample research confirming—that trust in the enterprise of government is absolutely essential to the operation of that government. To deliberately undermine popular belief that government as an institution is both necessary and (in the main) beneficial is to intentionally destroy its ability to function.

Accountability is important. No one in her right mind would suggest that every government program is well-run (or even necessary), or that every government official is a wonderful person devoid of self-serving motives, or that we should turn a blind eye to ethical and legal transgressions. We need to identify and correct the very real problems that exist. But with all its imperfections, with all its opportunities for mischief, the American administrative state has served us well.

Making governance impossible in order to gain political advantage so that you can ultimately control  the institution you have neutered is rather obviously short-sighted.

If true, it is also–and I use the term advisedly–evil.

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Political Gamesmanship from Indiana’s Governor?

As regular readers know, I posted a critical review of Governor Pence’s “State of the State” address. I certainly wasn’t alone–editorial writers and columnists around the state panned the presentation.

Critics focused particularly on the Governor’s unwillingness to endorse civil rights protections for LGBT Hoosiers, and his declaration that he “would not sign” a bill he considered insufficiently protective of religious liberty.  Like most critics of that pronouncement, I assumed that the lack of specifics–the Governor certainly didn’t say what provisions he would or would not accept–was tantamount to a veto threat.

We may be wrong—but not for reasons that are particularly comforting to those on either side of this debate.

Over the past two days, in separate conversations, people with broad political experience observing Indiana government have parsed the Governor’s language and arrived at a different conclusion. They point out that what Pence said was “I will not sign a bill…” He did not say “I will veto a bill.” Under Indiana law, the two are not the same thing.

In Indiana, when the state legislature passes a bill and sends it to the Governor,  there are three actions that Governor can take: 1)he can sign the bill, after which it becomes law; 2) he can veto the bill and send it back to lawmakers, who can then sustain or override the veto;  or 3) he can allow the bill to become law without his signature.

Politically, as everyone has pointed out, Pence is between a rock and hard place. His reelection prospects are utterly dependent upon the loyalty of his base of “Christian Soldiers.” He cannot afford to lose them, and they will leave at the slightest sign that Pence is softening his stance against equal rights for LGBT Hoosiers (and that would include any statement suggesting that he might allow an expansion of civil rights to become law).

Unfortunately for Pence, the number of these religious warriors is steadily declining, so he also needs significant support from the business wing of the Republican Party— and the business community is virtually unanimous in its support for civil rights expansion.

As the Democrats have pointed out (almost daily), Pence spent some 175 days avoiding taking a position—desperately trying to placate those on either side of the issue.

As one of the lawyers I talked with observed, the “non-position” communicated to the legislature in Pence’s State of the State address had two possible interpretations: 1) please don’t send me anything that will force me to decide what to do; or 2) if you send me a bill, I won’t sign it–but I won’t veto it, either. It will become law without my explicit endorsement.

The carefully noncommittal framing of the Governor’s statement in the State of the State was even more cowardly than it appeared in the moment, because it allows people on both sides to believe that he shares their concerns–that he is “with them.”

Disingenuous as it may have been, however, it gives some small measure of hope to those of us who want to see genuine civil rights protections for LGBT Hoosiers enacted in Indiana.

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It’s Called the Rule of Law….

Indiana’s Governor isn’t the only government official living in an alternate universe. Look, for example, at Alabama’s “Judge” Roy Moore, who has also been in the news of late.

It’s one thing when students who don’t understand the difference between a statute and a constitution complain that their preferred policies should be the law of the land. It’s regrettable–albeit humorous–when Y’all Qaida cowboys communicate their grievances (and inadvertently, their ignorance) by taking over a bird sanctuary. But we expect lawyers— and especially Judges—to understand how the American legal system works.

They don’t have to agree with every Supreme Court decision. They can stamp their feet and insist—as Governor Pence did when he was Congressman Pence—that Marbury versus Madison was wrongly decided, and that every statute struck down by the Supreme Court since 1803 was an act of judicial usurpation.

But we do expect them to obey the decisions of the highest court in the land.

For those of you who’ve been vacationing on the moon, Moore—who has long been a religious zealot with delusions of grandeur—is the Chief Justice of the Alabama Supreme Court, a position he regained after being removed for defying federal law and several court orders by erecting a five-ton replica of the Ten Commandments at the door to the Alabama courthouse. Most recently,

Judge Moore issued an administrative order declaring that “Alabama probate judges have a ministerial duty not to issue any marriage licenses” to same-sex couples. The Supreme Court’s June Obergefell decision legalizing same-sex marriage involved a case from a different federal circuit, so it does not apply in Alabama, Moore argues. Legal experts say that is a patently wrong interpretation of American law.

Patently wrong indeed! Law students who took such a position would never pass a bar exam.

Read my lips, “Judge.” If you don’t like gay people, fine. Don’t invite them over for dinner. If you disapprove of same-sex marriage, don’t have one. If your version of God hates homosexuals, feel free to pray for their descent into the fiery pits (or whatever hell you people believe in).

But no matter how fervent your belief, no matter how wedded you are to your animus, you don’t get to overrule the Supreme Court. If you are incapable of following and applying the law, you need to be impeached or otherwise removed from a position that allows you to affect other people.

I think it was Andy Warhol who said everyone was entitled to 15 minutes of fame. Don’t look now, Judge, but your 15 minutes are up—and it won’t be long, in historical terms, until those who agree with you join you in that great dustbin of history.

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The State of the Governor

So–I poured a stiff drink and listened to Mike Pence deliver (his version of) the “State of the State.”

The word “smarmy” comes to mind.

There is much that might be said about this particular effort to put lipstick on a pig–the state he described is not one I recognized, nor the state that widely available data describes.  (My son, with whom I was watching, asked what grade I would give a student whose assignment was to deliver an accurate assessment of Indiana’s economic and social well-being and utterly failed to do so.)

There were some truly cringeworthy moments. The Governor, you may be surprised to learn, is “honored to be the Commander in Chief” of Indiana’s National Guard. At the conclusion of the forced, wooden speech—a pastiche of talking points and trite adages that met with dutiful but definitely not enthusiastic applause—he declaimed several lines from  “On the Banks of the Wabash.”

The part of the speech that the entire state was waiting for—the Governor’s position on extending state civil rights protections to LGBT Hoosiers—came at the end, and the Governor’s discomfort was palpable.

Pence assured everyone that he had “prayed” about the issue. (Clearly he hadn’t thought about it—but then, nothing in the speech gave evidence of much thought.) He reprised his “Hoosiers are good people who don’t discriminate” mantra and then engaged in a rambling discourse about the importance of religious liberty.

Bottom line: he won’t sign a bill that deprives religious folks of their ability to act on their beliefs everywhere—including at work.

There are two rather obvious responses to that declaration, one legal and one political.

First, the Constitution protects citizens’ right to believe anything. Full stop. It does not, however, protect an untrammeled right to act on the basis of religious doctrine. If my sincerely held religious belief requires me to sacrifice my first-born, or take drugs, or murder abortion doctors, or cheat nonbelievers, the government has the right to step in and say “too far.”

People of good will can disagree about the specific rules that are necessary to a fair and functioning society, but the Constitutions of the United States and Indiana have never been interpreted to privilege socially harmful behaviors simply because those behaviors are religiously motivated.

Second—and here, I admit to more than a bit of shadenfreude—Governor Pence has wedged himself firmly between a political rock and hard place.

The religious extremists who have always been his base will desert him in a heartbeat if he signs any bill that, in their eyes, “legitimizes” LGBT Hoosiers. Meanwhile, polls confirm that a solid majority of Indiana voters support adding “four words and a comma” to the state’s civil rights statute. And given this administration’s other blunders—its unremitting war on public education and  Glenda Ritz, the proposed “news bureau,” the lack of attention to Indiana’s crumbling infrastructure, etcetera etcetera—Pence simply does not have political capital sufficient to weather widespread disapproval of this particular culture war battle.

The wooden and forced delivery of last night’s platitudes suggests that the reality of his position is beginning to dawn on our “Christian soldier” Governor.

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Canaries in the Coal Mine

Historically—or so we are told—miners tested the breathability of the air in mines by releasing a canary into the space. If the canary continued to fly and look healthy, the air was safe; if the bird died, it wasn’t.

Recently, Pew Research published findings about the millennials who are, for all intents and purposes, our American canaries. As we older citizens die out, the values, fears and ambitions of the millennial generation will determine the direction of the country.

Pew announced six “key takeaways” about this generation. Some were unsurprising: this is a financially burdened generation, largely as a result of student loan debt; as a result, fewer millennials are married than previous cohorts at the same age. They are also the most racially diverse generation thus far.

Two of the characteristics found by Pew deserve special “canary” status.

First,

Millennials have fewer attachments to traditional political and religious institutions, but they connect to personalized networks of friends, colleagues and affinity groups through social and digital media. Half of Millennials now describe themselves as political independents and 29% are not affiliated with any religion—numbers that are at or near the highest levels of political and religious disaffiliation recorded for any generation in the last quarter-century.

My discussions with students in this age cohort anecdotally support this conclusion—and suggest that the public behaviors and pronouncements of political and religious figures is one significant reason they reject those institutions. My students are repulsed by the use of religious or patriotic language in service of discrimination and generally hateful behaviors; rather than rejecting the specific individuals or organizations guilty of such behaviors, they tend to develop a “pox on all of you” attitude.

But a less obvious finding also casts considerable light on the institutionally detached status of this generation:

Millennials are less trusting of others than older Americans are. Asked a long-standing social science survey question, “Generally speaking, would you say that most people can be trusted or that you can’t be too careful in dealing with people,” just 19% of Millennials say most people can be trusted, compared with 31% of Gen Xers, 37% of Silents and 40% of Boomers.

This really troubling absence of trust manifests itself in a number of ways: millennials don’t expect Social Security to be there for them, for example (although, interestingly, they oppose proposals to cut benefits for current recipients). Their lack of trust in a wide variety of social institutions helps explain their rejection of political and religious identification, their pervasive skepticism about media information sources, and their increased reliance on friends and colleagues.

Assuming these findings continue to hold, what does this “canary” generation tell us about America’s future?

One the one hand, greater diversity and tolerance—together with rejection of dogma and partisanship—bodes well. This generation is likely to reject racism and address the glaring flaws in the criminal justice system, likely to welcome immigrants, likely to scorn anti-LGBT bias.

On the other hand, participation in a democratic polity requires at least a minimal level of trust—trust that the information one receives is credible, trust that the operations of government are mostly fair and ethical, trust that one’s fellow citizens are basically well-intentioned. Without that trust, without social capital, societies cannot function.

The canary isn’t dead. But it’s coughing a lot.

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