The Briefing 03-18-16

Part I

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More questions than answers surround the worldview of Obama's nominee to the Supreme Court

As expected, much of the national conversation today and going into the weekend has to do with President Obama’s nomination of Judge Merrick Garland to fill the seat vacated with the death of Antonin Scalia on the United States Supreme Court. And yesterday was largely a day of the kind of ceremonial activities traditionally associated with a nomination to the High Court. Yesterday, prominent members of the Democratic Party in the Senate welcomed Merrick Garland to their chambers in a much-publicized process of introducing him to the Senate and to the American people. That over against the background that Republican leaders have announced they are not going to consider nor give hearings to any nominee from President Obama to the Supreme Court until after at least the election in November. Yesterday also brought as anticipated the second wave of news and analysis on the nomination, an important part of that was brought by Lauren Markoe writing at Religion News Service. The headline of her article:

“Merrick Garland is Jewish. Does it matter?”

As she writes,

“President Obama’s nominee for the Supreme Court, Merrick Garland, would be the current court’s fourth Jewish justice if confirmed.”

She went on to write,

“For Jews, who represent about 2 percent of the population, holding 44 percent of the seats on the court might be a point of pride.”

But then she asks,

“But is it anything more than that?”

Well, there are at least two dimensions to answering that question. The first has to do with history. This would be an historic development in the United States, but on those grounds it’s a bigger story than even this headline would indicate. Because if Judge Garland were to be confirmed to the Supreme Court, not only would there be four sitting Jewish justices, there would be five sitting Roman Catholic justices. That means that there would be, in a nation that is overwhelmingly Protestant, not one single Protestant member of the nation’s highest court. But wait just a minute—it’s actually been that way for some time now. The last Protestant nominated to the nation’s highest court was Justice David Souter, who was nominated back in the 1990s by President George H.W. Bush. As Markoe writes,

“If he is confirmed, the Supreme Court would have five Catholic justices (Chief Justice John Roberts and Associate Justices Thomas, Anthony Kennedy, Samuel Alito and Sonia Sotomayor) and four Jews (Garland and Associate Justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer).”

The article cites Richard Garnett, a law and political science professor at the University of Notre Dame, who said that many things about the current Supreme Court and its work would probably have surprised the founders of the nation, including the original justices of the Supreme Court.

“Especially surprising, though, would certainly have been the fact that every member of the court is Catholic or Jewish.”

He went on to say,

“It is, I think, noteworthy that, like every Supreme Court nominee for the last 25 years, Judge Garland is not a Protestant,” Garnett continued. “In fact, if Judge Garland were confirmed to the Court, it would continue to lack — as it has since Justice Stevens stepped down — a single Protestant member.”

Well, hold on to that. But that raises the second dimension of answering the question. Does it matter that this nominee is Jewish? That second dimension comes down to this: how does his Jewishness inform his worldview when he approaches the law, the United States Constitution, or anything else? Judge Garland’s Jewish background is evidently and clearly important to him as he said when he was standing with the president in the Rose Garden:

“My grandparents left the Pale of Settlement, at the border of Western Europe and Russia, in the early 1900s, fleeing anti-Semitism and hoping to make a better life for their children in America.”

The judge is identified as a member of Temple Sinai, a Reformed synagogue in Washington, D.C., where both his daughters had their bat mitzvahs.

One reformed Jewish authority cited in the article, Rabbi Jonah Dov Pesner, the head of the Religious Action Center of Reform Judaism, said,

“On the one hand, we’re incredibly proud. He’s a Reform Jew and he belongs to one of our synagogues. We’re happy for him and we wish him mazel tov and it’s a wonderful thing for our movement.”

But the Rabbi went on to say,

“At the same time, one’s faith has no bearing on one’s qualifications to be a Supreme Court justice.”

Now that in itself is a statement that needs much closer attention. Here you have a Rabbi saying that it makes no difference. In his words,

“One’s faith has no bearing on one’s qualifications to be a Supreme Court justice.”

Well, taken at face value, qualifications would be one thing, but the larger issue is worldview. How would anyone’s worldview, including one’s most basic religious beliefs, inform how we are to understand the interpretation of a text—in this case, quite specifically the United States Constitution? And no one’s worldview can be defined apart from their most basic religious beliefs. Now there’s another interesting aspect of this. There seems to be a political imperative these days to say that religion doesn’t matter, and yet there is every bit of evidence that it does; and that includes the fact that even when introducing this judge as a prospective Supreme Court justice, that became a part not only of the story, but of the President’s announcement. The identification of Judge Merrick Garland as Jewish just gets the story started in one sense, because as this article makes clear, he’s not just Jewish, he is specifically identified as a member of a Reformed Jewish synagogue. And the important thing about that is that Reform Judaism represents the left wing of American Judaism. It also represents at present, a majority of Jewish citizens in the United States.

What really matters more than anything else is that when we look at the worldview of justices of the United States Supreme Court, what will be remarkable is not what’s present—that is Roman Catholic and Jewish worldviews—but what is absent, and that is a Protestant worldview. And that would mean that going back all the way to 1990 there would not have been a Protestant nominee to the United States Supreme Court for over a quarter of a century, and that should tell us not so much what would be present on the Court, but what would be absent. And the importance of worldview makes very clear that it can’t be unimportant that the worldview—that is the theological worldview—that marks the vast majority of Americans would continue to be absolutely absent from the nation’s highest court.

But also as a part of that second wave of analysis, there were a series of headline such as this:

“What is Merrick Garland’s view on gay marriage?”

You read the article, you do not learn much. A very significant article appeared at Time magazine written by Charlotte Alter. The headline:

“Merrick Garland, the Abortion Rights Sphinx.”

The subtitle,

“What Merrick Garland thinks about abortion?”

Now, again, you look at the article and you do not learn much, but you do learn something. As Alter writes,

“Nobody seems to know what Judge Garland thinks about abortion. He won’t have a say in the current abortion case, but his position could be important for future abortion rulings.”

That, we should note, is an understatement.

“Demographically, it seems likely that Garland is probably pro-choice: he’s not super-conservative, he’s Jewish, and he’s the father of two daughters.”

Well, that’s the kind of secondhand distant analysis that is being offered here. But then the author goes on to say, “but nobody knows for sure.”

The only sure thing is that no one apparently knows for sure. But that’s just apparent. There is a huge question as to what this judge actually believes and how we will ever find out if indeed there are or are not hearings. But the important thing to recognize is that everyone is asking this question. Pro-abortion forces are asking the question; pro-life forces are asking the question; those who are for gay marriage are asking the question; those who are against gay marriage are asking the question. The reason for that is simple: the Supreme Court is at the center of so many these controversies.

But there’s another very interesting aspect of this when it comes to Judge Merrick Garland; Time magazine in that article gets to it more clearly than anything else. One authority cited in the article says that,

“Judge Garland never revealed his views on reproductive issues.”

David Pozen, an associate professor at Columbia law school who clerked for the judge, said,

“The mask never slipped.”

Jay Michaelson, a legal affairs columnist for the Daily Beast who also clerked for the judge, said,

“We truthfully never talked about it. We knew better than to ask.”

What does that tell us? It tells us that this is a judge who very much has planned to sit on the United States Supreme Court and who has plotted—as some of his best friends have indicated to the media—to take no misstep, to make no mistake on his way to confirmation to the nation’s highest court. Already in his 60s, as many have observed, this is probably his last chance to be appointed to the Court; but it is also clear that in terms of building his resume, in gathering his experiences, in collecting friends and in staying clear of any controversy, Judge Garland has been planning for this for a very long time. And that gets back to the issue of reproductive rights as they are styled here, it gets back to the issue of abortion in American public life.

Going back to the mid-1980s, when Ronald Reagan appointed Judge Robert Bork to be the justice on the Supreme Court, the Democratic Party politicized that nomination and did so in a way that had never been true in American history, and the issue of abortion was actually central to the discussion to the controversy and eventually to the failed nomination of Robert Bork. In many ways, Robert Bork was the last nominee to the nation’s highest court to actually state in print, in public and before the Senate committee on the Judiciary, what he actually believed about Roe v. Wade. It is clear that Judge Garland has been very strategic and extremely careful and scrupulous not to give any indication, even in private, even to his law clerks, about the issue of abortion. That can’t be by accident. As the Time magazine article says,

“Pro-choice groups didn’t condemn the nomination, nor was there a resounding cheer. Cecile Richards, President and CEO of the Planned Parenthood Action Fund, said Garland seems ‘responsible and qualified,’ but acknowledged a lack of information about his record on reproductive issues.”

The Time magazine article also cites the head of NARAL Pro-Choice America, who said that Judge Garland “does not have a public record on reproductive rights.”

But then we need to note one fascinating statement from the Time article,

“And unless there was a pinky-swear in the Oval Office, Obama himself may not know where Garland stands.”

Now that’s Time’s way of saying: Would there be a secret agreement between President Obama and the nominee? Let’s just state the matter clearly. It is unlikely that President Obama, to date the most pro-abortion president, the most pro-abortion national political figure in American history, would appoint someone to the Supreme Court without being satisfied on the issue.

And that’s where another vital piece of information enters the picture, a piece of information that is not in that Time magazine article and to my knowledge has not made the national press in terms of the mainstream media. But Life News yesterday reported that Planned Parenthood CEO Cecile Richards was spotted at the White House immediately after the Merrick Garland nomination was made. That’s a strategic piece of information that has been left out of the mainstream media’s coverage, even as the mainstream media have revealed the fact that many other groups were present at the White House, clearly in order to have their feathers unruffled in the aftermath of the nomination, groups who were hoping for a different kind of nominee, someone who would represent an ethnic minority and add new ethnic and racial diversity to the Court. They were clearly disappointed in the nomination of another white male to sit on the nation’s highest court, and it was very clear that the White House was doing its best to repair any damage yesterday. In particular, there were groups that had been openly calling for another African-American justice and perhaps the first female African-American justice to sit on the Supreme Court. But making his nomination on Wednesday, it was clear that President Obama was doing his best to nominate someone to present the Republicans in the Senate with a significant political challenge.

But it is a vital piece of information to know that Cecile Richards, the head of Planned Parenthood, was amongst those who were at the White House to be affirmed, or at least consoled, in the aftermath of the announcement made by the President. It is unlikely that there would be any possibility that Cecile Richards would be at the White House in order to be told that the President really didn’t know this nominee’s position on abortion in nominating him to this crucial position on the United States Supreme Court. That simply lacks plausibility. This much is already clear: the nation’s leading advocates for abortion are not opposed to this nomination by President Obama. Given the coded nature of language and actions in politicized Washington, that tells us for now, quite enough.

Part II

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In commendable statement, Kerry declares ISIS has committed genocide against Christians

Next, yesterday was an important day when it comes to religious liberty, and at the center of this story is the Secretary of State of the United States, John Kerry. As the Washington Post reports, Secretary of State John F. Kerry formally declared on Thursday that the Islamic State extremist group has committed genocide against Christian and other religious minorities, including Shiite Muslims, in its rampages across the Middle East. The Secretary of State was responding to a deadline set by Congress of March 17 and, as the Post reports,

“Kerry issued a finding that largely concurred with a House resolution declaring the Islamic State guilty of genocide. The resolution passed 393 to 0.”

Why does this matter? Why does just the word “genocide” matter? That was also made clear in an article that appeared yesterday at Religion News Service when one pastor in Iraq said,

“To not say the truth, this means you are giving to the terrorists a green light: Go ahead and kill the Christians.”

Killing the Christians is exactly what they are doing. The Islamic State as a murderous, terroristic regime has clearly placed at the top of its agenda expunging from the Middle East all Christian witness, and that means expelling or murdering the Christians in the regions under ISIS control. The use of the word “genocide” here is very important, because going back to the middle of the 20th century, genocide became the word recognized globally for a strategic effort to eliminate by death, execution, or other means an entire population. And that’s what’s really crucial here, because the population in this case is of Christians throughout much of the Middle East where Christianity was born and the first Christian churches were established. It was noteworthy that Secretary Kerry read the statement to reporters himself yesterday and in making his statement he said that ISIS, which he identified at one point as Daesh, is genocidal. The Secretary said that the group “has self-identified itself as genocidal.”

“We must hold the perpetrators accountable. Naming these crimes is important, but what is essential is to stop them.”

Now just about everyone, including every observer of that statement, would agree that what must be done is to stop the genocide. But the reality is that nothing the Secretary said yesterday and no action by the Obama administration to date has stopped the genocide of Christians and others in regions under ISIS threat and ISIS control.

“The genocide designation,” said Washington Post, “does not actually legally require the United States to do anything more than what it is already doing.”

Mark Toner, identified as deputy spokesman for the State Department, in the aftermath of the Secretary’s statement said,

“It’s more a moral statement. It is a recognition of what groups have gone through, suffered, it’s a rallying cry for the international community, but it doesn’t change our overall strategy, except to intensify what we are doing.”

That is diplomatic, bureaucratic speech for “we’re going to call it something different, but were not going to respond any differently.” Nevertheless, as that pastor in Iraq noted, it makes a difference when the United States government at least says in public and says to the global community that what is taking place is genocide. The employment of that word by the United States Secretary of State in public on Thursday makes a difference. Whether it’s going to make a difference in saving a single Christian in terms of life on the line in the Middle East is still very much in question and has everything to do with the overall foreign policy and defense approach of the Obama administration and other Western allies.

But in this case we should credit the United States House of Representatives for that very clear moral statement made on Monday night, and also we should credit Congress with giving the Department of State and the Secretary of State a deadline of March 17 to make an official declaration. At the same time, the Secretary of State of the United States deserves credit for saying the truth and saying it boldly and publicly. What is being experienced now by Christians in the Middle East is an attempted and actual genocide on the part of the Islamic State.

But even as the Secretary of State’s statement yesterday is noteworthy, what is equally noteworthy and perhaps even more so is that the President of the United States has not made a statement of equal clarity. Writing at The Atlantic about this absence, Adam Chandler writes,

“Obama, given his aversion to raising what he sees as excessive alarm about the terrorist group, doesn’t seem likely to bite.”

In moral terms, go back to what that pastor in Iraq said about not using the word “genocide” is giving groups like ISIS a green light to kill Christians. It does say something that the Secretary of State called genocide by its name yesterday. But it says something even more profound that the President of the United States has to date not done so.

Part III

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Lenders looking to capitalize on divorce actually bank on discord, not faithfulness

Next, the Christian Church, based upon the biblical worldview, has had a long-standing commitment to the definition of marriage and its integrity and a long-standing moral concern about the business of lending money. All of this comes to an intersection in an article that appeared in recent days in The Economist of London. The article is entitled,

“Till debt us do part.”

The subtext,

“Lending to people seeking to end a marriage is a growing business.”

The Economist reports,

“In many Western countries, including America and Britain, divorce lawyers are not allowed to represent a client in exchange for a share of whatever settlement they secure (as opposed to charging a fixed fee). Such arrangements, it is feared, would beget more and nastier divorces. Yet the same rules do not apply to financiers: they are free to fund legal battles over marital assets—and a growing number do.”

The fact that this has the attention of The Economist, one of most influential financial periodicals in the world, should tell us something in moral terms. The article says,

“Novitas Loans, a British firm, is currently lending to 1,500 would-be divorcées (most are women) or divorcés, at 18% annual interest. The loans are intended to cover legal fees; applicants typically expect to win assets worth three times their borrowing. Without the loans, many would have to give up and settle for much less, says Jason Reeve, the firm’s managing director. It gets lots of thank-you letters from borrowers, he claims. Demand for loans of this kind has jumped since the British government restricted legal aid for divorces in 2013.”

But the story only gets more interesting and more important in moral terms when The Economist says that many of these businesses trying to get into this new, very lucrative avenue of lending money to people seeking divorces, that many of these companies are particularly targeting the divorce cases in which reconciliation is least likely. In other words, they’re going to make more money if the divorce happens; they’re not going to make money if reconciliation actually takes place. Now just put that into a moral perspective. These are people who are seeking to make money out of divorce and they won’t make the money if the divorce doesn’t happen, if indeed the couple reconciles. As The Economist says,

“Novitas therefore prefers to fund cases that have been grinding through court long enough to make reconciliation unlikely.”

But then when you think using just about everything, The Economist says this:

“Rather than lend money, some firms ‘invest,’”—the word invest is put in quotation marks—“in divorce cases, asking for repayment only if a settlement is reached. A year ago Novitas bought an American firm, National Divorce Capital, that offers such ‘non-recourse cash advances.’ Since then, applications for advances have doubled. It plans to open branches in Australia and Canada later this year.”

So just step back for a moment and consider what this very small and relatively insignificant article in The Economist tells us. It tells us that there is big business in divorce. It tells us that there’s a new booming business in lending money in order to make divorce happen. It tells us that many of these companies are actually looking for the messiest divorces, and they are not going to invest in a divorce that might go bad—that is, that actually ends in marital reconciliation. And furthermore, we are told that now you have a British company that has bought an American company. What was the name of that American company? National Divorce Capital. Just consider those three words put together in moral terms and then even as we are told that this is a booming business in Britain and the United States, we are told that these firms intend to open branches next in Australia and Canada even later this year.

As I said at the onset of this issue, the Christian Church has had a long-standing, faithful commitment to the integrity of marriage and has understood divorce as the dissolution of a covenant made not only before a congregation, but before God—a covenant until death do we part. But then we have the reality that the Christian Church has long been concerned about the moral dimensions of the money lending business. And never more have we seen those concerns become more of a parable right before our eyes then in a company called National Divorce Capital, in a company in Britain that is seeking to identify the messiest divorces so that it can invest in divorces that won’t end in reconciliation. If you’re looking for direct evidence of how sin corrupts every dimension of life, just consider every word in this article. There it is right before our eyes.