Enemy of the People

“It is the press, above all, which wages a positively fanatical and slanderous struggle, tearing down everything which can be regarded as a support of national independence, cultural elevation, and the economic independence of the nation.”[i]

“The press is the enemy of the people.” Donald Trump lashed out at the press in the last few days, again, as the nation and the world grappled with the largest terrorist attack against the Jewish people in the history of the nation. In New York City, the Empire State Building went dim in honor of those killed in Pittsburg. In Paris, the Eiffel Tower went dim. Across the world, there were prayers for the families of the lost. In the U.S., there was politics as usual.

The day after another pipe bomb was delivered to CNN, the President tweeted that “There is great anger in our Country caused in part by inaccurate, and even fraudulent, reporting of the news. The Fake News Media, the true Enemy of the People, must stop the open & obvious hostility & report the news accurately & fairly. That will do much to put out the flame...”

We could be gracious and assume that the President and his minions do not understand the gravity of their discourse. We could believe that the President does not understand the history of the term. We could lay the actions of the administration to poor timing or lack of sensitivity. We could, but it is none of the above.

Enemy of the people goes back to the time of Nero. During the Reign of Terror in France, the government used “ennemi du peuple” to describe those who disagreed with it. The Third Reich called Jews the sworn enemy of the people. Mao called the press the enemy of the people. Stalin used the press to teach the populists to believe in his government, and those who did not agree wore the title of an enemy of the people.

There is, to be sure, a lot of fake news in newspapers with agendas. Human Events comes to mind, as well as the Weekly Standard, National Review, the Washington Times or the New York Post. Social media simply boils with agenda driven lies. However, the major newspapers who report the news accurately, in a democracy, cannot be called the enemy of the people. It is the role of the press, the Fourth Estate, to afflict the comfortable and comfort the afflicted.[ii] When they do their job well, they are not the enemy of the people.

To be sure, we are a few days from a significant mid-term election that will decide the tenor of the country for the next two to six years. It is legitimate to rile up the base and get out the vote. It is legitimate to work with all your energy to win the election. It is not OK to do whatever it takes to win.

In a period of national mourning, we depend on the President to be the Consoler in Chief. In a week when fifteen or more bombs were sent to leaders and prominent institutions across the country, we had no one to console us because our leader was on the campaign trail complaining about how the wind had blown his hair, or tweeting about the pitching changes in the World Series game. Any other President, of either party, would have called for at least three days of mourning and cessations of campaigning. They did it in past years. Ours, today, continues the campaign in earnest, building up hatred against those who disagree with him.

It should never be forgotten that the people of Germany elected Adolph Hitler to be their Chancellor. Once in power, he rallied the populist into a frenzy that allowed for the extermination of millions of the enemies of the state. The people of Russia allowed Lenin and Stalin to come to power and to eliminate millions of the enemies of the state.

First they came for the socialists, and I did not speak out—
     Because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—
     Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—
     Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.[iii]

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[i] Adolf Hitler – Mein Kampf - 1925

[ii] Finley Peter Dunne – Mr. Dooley in Peace and War - 1898

[iii] Martin Niemoller – First They Came - 1946

Judicial Temperament

At heart, I am a history teacher, irrespective of all else I have done since those early years. I am a political junkie too. I try to moderate my views but sometimes I stray. A few weeks ago, I spent most of a day watching the first Senate Judiciary Committee’s hearing on Judge Kavanaugh’s suitability for the Supreme Court. He already serves on the US Court of Appeals for the DC Circuit. (Ironically, Merrick Garland, President Obama’s nominee to the Supreme Court, which the Senate Majority Leader derailed, is Chief Judge of that Circuit.) Most nominees to the Court are well vetted, but it still didn’t go well for Brett Kavanaugh.

The President nominates candidates for the federal judiciary “by and with the advice and consent of the Senate.”[i] The Senate Committee on the Judiciary has responsibility for questioning nominees, considering information in the background checks conducted by the FBI and its own investigators and voting to either reject or forward the nominations to the full Senate for a vote. The quest to determine basic competence and integrity often becomes a deep dive into party politics.

The American Bar Association, the traditional arbiter of the competence of the nominees for the federal courts, considers several characteristics in its evaluation: compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice. Throughout their deliberations, they consider judicial temperament.[ii]

 Professor Jeffrey Rosen, one of the most important scholars of the Supreme Court[iii] writes about judicial temperament this way: “The most important predictors of success on the Supreme Court are not academic brilliance, philosophical consistency, or methodological ambition.” Successful justices are open to compromise, set aside ideology, and get along well with their colleagues.

Judge Kavanaugh spent hours before the Senate Judiciary Committee answering questions and rebutting innuendo about his fitness. Frankly, he did a good job of defending himself. There was little question that his nomination would be sent to the full Senate for confirmation. Then the other shoe dropped.

During the two weeks following Kavanaugh’s initial testimony before the Judiciary Committee, a letter from Dr. Christine Blasey Ford accused Kavanaugh of sexual assault during their high school years. Later, two more allegations of sexual assault and drunkenness became public. Faced with mounting public outcry and political jousting, the Chair of the Judiciary Committee was forced to re-open the hearings.

Dr. Ford’s testimony brought visible angst to the Senate majority members. Her presentation was professional and wildly credible. The nation watched transfigured and found the professor’s stinging testimony compelling. She had made her mark on the country. Judge Kavanaugh would plead his case in the afternoon. Most agreed that he needed to be credible, as well, and do it in a way that showed judicial temperament at its best.

 He opened his rebuttal in a very unusual way. “The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment,” and then suggested that the sexual assault allegations against him from three different women were part of a vast left-wing conspiracy going back to the Clinton era.[iv] Some wrote, “Kavanaugh was not simply angry; he was unhinged.”[v]

Judge Kavanaugh had suffered a shattering bruise to his reputation: top of his class in high school, in college, and in law school. He was a pillar of the community, serving the homeless, coaching his daughter’s basketball team, teaching at Harvard Law and serving actively at his church. He had a right to be angry, very angry. The accusations against him were embarrassing and career breaking. From the start, he went into attack mode. His opening statement in defense of his reputation and the charges against him was strong. His exchanges with members of the minority were impolite, to the point of requiring an apology. He did everything wrong. Judicial temperament was missing, and the nation saw it on full display.

Justice Gorsuch, a conservative Trump appointee, had had his difficulties with the minority during his confirmation hearings. His seat on the bench, however, was simply replacing conservative Justice Scalia with another conservative. Then Justice Kennedy, the swing vote on the court, resigned. This was now the stuff of historical proportions. Kavanaugh sitting at the bar would change the course of American jurisprudence for decades. In a divided nation, the appointment would not go down easy.

We witnessed one of the most historic days in the history of the Senate. Hoping for a rush to judgment and a quick floor vote, the Chair of the committee called the roll. It came down to one Senator who managed to work out an agreement with the minority side. He would vote to send the nomination to the floor only if he had an assurance that the majority party would agree to reopen the FBI background check to search for more evidence. It likely doesn’t matter what the FBI finds in its investigation. The Senate, so split in its view about the country, in its distrust of other members, in its penchant for a more conservative court, and in its fear of Donald Trump’s ability to persuade his base of voters in the fall election, that few will change their vote.

By the standards of judicial temperament, however, Judge Kavanaugh’s partisanship, lack of civility, and visible disdain for those who disagree with him failed the fundamental test for office. If confirmed to the highest court in the land, the institution will be changed forever. People will no longer see it as the blindfolded holder of the scales of justice but a highly politicized institution. It will change the country’s view of justice, impartial courts, the rule of law and its fundamental ethos.

Teachers will have to develop a new narrative when they teach Civics, when they teach about our being a nation of laws; when they teach about the basic values of our experiment. I hope that they won’t have to teach that democracy has run its course.

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[i] Article II, Section 2 – Constitution of the United States

[ii] American Bar Association – 2016 – Committee that evaluates judicial appointments

[iii] Ellen McGirt – Fortune Magazine- September 28, 2018

[iv] Stephane Mengimer – Mother Jones – September 27, 2018

[v] Howard Ross – USA Today – September 28, 2018