The Briefing 03-21-17

Part I

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In ongoing confirmation hearing of Neil Gorsuch, opening statements illustrate just what's at stake

Yesterday was very interesting in terms of the confirmation hearings of Judge Neil Gorsuch nominated by President Donald Trump to be the next sitting justice of the United States Supreme Court. Yesterday was mostly about formalities, yet the formalities are important. They’re a part of our democratic traditions. The formalities included the fact that the prospective nominee would be introduced by Senators from his home state there in Colorado. The formalities involved opening statements, statements made by the nominee, but most importantly statements made by members of the judiciary committee of the United States Senate.

What we saw on display yesterday was the appropriate deference toward the Supreme Court. That is to say, every single senator, everyone in the room seemed to understand the importance of the Supreme Court and the role that it plays within our constitutional system of government. Beyond that, the disagreements in terms of worldview and ideology were already on display. In one of the most important of those statements, very revealing in itself, California Democratic Senator Dianne Feinstein described the Constitution as a living, evolving document, a document she said that was meant to evolve along with the nation. There you have a rather classical statement of that liberal understanding of the U.S. Constitution and the rightful way of interpreting it.

At the same time you had some senators on the other side, such as Texas Senator Ted Cruz, who was equally clear about the fact that what the nation needed was a justice who would pay careful attention, indeed authoritative attention, to the actual words of the U.S. Constitution and to the intentions of the framers. But in terms of the statements made yesterday, I think the most revealing of all was made by Nebraska Senator Ben Sasse, also a member of the Senate judiciary committee. In comments made before the nation, but comments particularly to the Senate judiciary committee, Senator Sasse pointed to the symbolic nature of the robe that a justice wears, that is a black robe. It is, as Senator Sasse said, neither a blue robe nor a red robe, that is it isn’t a Democratic robe or a Republican robe.

Now at this point we have to say that Senator Sasse was speaking in terms of the ideal, and he was correctly pointing to the fact that in our nation’s constitutional system the judiciary is intended to be nonpartisan. That is one of the reasons that the judges and justices at the federal level are confirmed for life terms. That’s a very important issue. That is to remove at least part of the partisan reality that might attend to either the other two branches of government. And of course even as Senator Sasse was speaking to this ideal, it is an ideal that virtually no one can reject as the ideal. That is to say almost no one with a straight face, especially including a United States Senator, would dare to say that the Court should be partisan and that judges should in effect wear blue or red robes. But as we said, that is the ideal that sometimes collides with the reality. The reality is that the Court has become highly partisan, especially over the last half-century, and we’ve also seen that there is a correlation between the constitutional philosophy that a justice takes to the Court and the partisan identity of the President who has appointed that justice.

But it was a service to the country that Senator Sasse expressed that ideal and that was very important for Americans to hear. But Senator Sasse went on to say that there’s a second reason for the black robe. It helps explain the calling of a judge to the judiciary. He said this,

“I said it was a loose analogy because the job of Supreme Court justice is absolutely not to deliver an eternal message from God. It’s to interpret a written, man-made Constitution as objectively and faithfully as they can, inserting their own opinions as little as possible.”

He then went on to say,

“When you put on that robe, you are also cloaking your personal preferences.”

But it was at this point that Senator Sasse made what I think is the most important part of his argument. It’s where he pointed to the Supreme Court among the three branches of the United States government as the branch that is responsible for speaking for the long-term voice of the American people. America is a constitutional Republic. It is a form of democracy. It is not a direct democracy. And among the three branches of government, the legislative, the executive, and the judicial, the judicial has the responsibility to make certain that a majoritarian rule does not violate the rights of others in the nation. And this gets to the point that it is the Supreme Court above all other branches of government and all other representations of the federal judiciary that must be the court of last resort.

Senator Sasse’s point was that when you look at legislation or when you look at elections of Congress or of a president, you’re looking at the short-term voice of the people. Senator Cruz actually spoke to the short-term voice of the people in this sense when he pointed to what he called the particular legitimacy of the nomination of Judge Gorsuch by President Trump because President Trump actually told the American voters in advance not only the kind of justice that he would appoint, but he offered a list of names that voters could consider. That’s also a very interesting argument coming from Senator Cruz. That’s about the short-term voice of the people, election by election, vote by vote. But Senator Sasse was pointing to the fact that the long-term voice of the American people is also a very, very important voice. And in that Senator Sasse was pointing to the United States Constitution and to the long tradition of judicial respect for the Constitution that has marked this country at least in terms of when the judiciary has been most faithful.

That idea of the long-term voice of the people is really, really important because at least some Americans would look at the Court, at an unelected group of judges and justices in the federal judiciary and to a group of judges and justices who are appointed for life terms, and they might think that’s fundamentally nondemocratic. But the genius of our founders was not only the separation of powers but in the assignment of particular stewardships to each of the branches of government. The particular stewardship of the judicial branch represented more than anywhere else at the Supreme Court of the United States is the stewardship of that long-term voice.

Years ago, it was G.K. Chesterton who argued that tradition is what he called the democracy of the dead. It is reverence for consideration for tradition that allows those who have now died to continue to have a voice. The framers of our constitutional order continue to have a voice through the U.S. Constitution. The states that ratified the Constitution continue to have a voice through the text of the U.S. Constitution. Successive generations, giving respect to the Constitution, at times amending the Constitution—their voices continue to be heard through the Constitution and through the United States Supreme Court.

Taking it back full circle, the argument made by Senator Feinstein and others about a living Constitution effectively nullifies the voice of the dead in terms of our national conversation and in terms of our democratic traditions. Here we need to understand that listening to those who framed the Constitution, listening to those who have given attention to the Constitution even by amending it, that is why originalism or strict constructionism or textualism—whatever it may be called—becomes exceedingly important. It’s because that is the system of understanding the Constitution that affirms that those who wrote it have the first say in what it means and that the words themselves, the syntax, the sentences, the propositions, are indeed the substance of what is to be interpreted.

The Supreme Court of the United States exists in its importance precisely because it is not to be driven by political expediency nor concerned about the latest election. The more recent politicization of the Supreme Court is a grave danger to our entire constitutional order. And even as yesterday was mostly about making opening statements and setting the stage for the kind of national conversation that’s going to ensue as the confirmation hearings continue, those traditions themselves are important, and those opening statements are not merely formalities. What was said yesterday is really important. We need to pause and consider why it is so.

Part II

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Money, budgets, and morality: Trump budget faces hurdles on both sides of the political aisle

Next, another part of our important national conversation has to do with the budget of the United States. President Trump sent to Congress last week what’s called a skinny form of the budget, that is a preliminary announcement of his budgetary intentions. And President Trump, consistent with many of the themes he articulated during the election, made clear that he wants to cut federal spending. He’s going to increase spending on national defense. Again, that was a major theme of his campaign. But when it comes to many other areas of government, it’s clear that President Trump intends, at least by this announcement sent to the United States Senate, he intends to cut the budget. These budget cuts would affect certain federal departments more than others, particularly hard-hit will be the Department of Education, the Environmental Protection Agency, and also some other federal departments, including a major cut to the Department of Health and Human Services.

Now keep in mind that the vast portion of federal spending on social programs called entitlements, that all of that is basically off-limits by the declaration of President Trump himself. He made clear that he does not intend to cut any kind of funding that would go towards these major entitlement programs. From a conservative perspective, that’s a huge problem, because unless those entitlement programs are reined in, if there’s not a net decrease in spending over against the economy, we will eventually as a nation find ourselves unable to fund these very programs. And furthermore, once the nation creates a dependency in the part of citizens upon these so-called entitlements—after all we call them entitlements because Americans come to believe that they are entitled to these programs—if there is not a weaning off of this dependency, then eventually we will meet an absolute crisis not only in fiscal terms, but also in moral terms.

But something that has become exceedingly clear, even as President Trump has adjusted defunding organizations such as the National Endowment for the Arts, what has become exceedingly clear is a basic principle of democratic government. And that is, once the government begins to spend money on something, it is virtually impossible to rein in that spending. And in terms of one of the long-term lessons of American political life, once you create a federal agency it is virtually impossible to eliminate that agency. This was clear when President Reagan campaigned in the 1980 election to eliminate the U.S. Department of Education. Not only was that department not eliminated during the two terms that President Reagan served in office, but by the end of his second term, as predictable, the federal agency was actually receiving even more budget money.

If there ever were to be an historical moment when the budget might actually be reset, if conservative hopes for a realignment of this budget were ever to be realized, it would have to be right now. The reason for that is straightforward. We have a Republican president. We have Republican majorities in both houses of Congress. The excuses made by Republicans in time past was that there either was not a majority in terms of one house or another in Congress or there was not a Republican president in office. Now there is absolutely no excuse for Republicans not making a very significant advance in reining in the federal budget. But just consider the kinds of headlines that are now becoming routine. Consider the headline such as the one from the arts section of the New York Times over the weekend,

“Republicans Defending Arts Grants.”

As Michael Cooper and Sopan Deb report,

“At first blush it’s like a dream come true for conservatives: Donald J. Trump has become the first president to formally propose eliminating federal programs for the arts and humanities, which have long been in the cross hairs of Republicans, and the threat is all the more real because the party also controls Congress.”

And yet the reporters go on,

“But even with one-party control in Washington, the fates of the arts endowment and the National Endowment for the Humanities are far from sealed.

 

Several key Republican lawmakers are expressing support for the programs, which, since their near-death experiences during the culture wars of a generation ago, have taken pains to counter accusations of coastal elitism by making sure to distribute their grants widely across all 50 states.”

Any time there is the slightest effort to try to cut back on any portion of the federal budget, there are immediate stories piling one upon the other of the incredible distress this will bring to communities, of people who will be robbed of experiences or benefits they believe they are now entitled to receive by any cutback in terms of the federal budget. What this story tells us is that even when it comes to something like the National Endowment for the Arts—and notice this article makes references here to the near-death experiences it says of many these programs during what’s described as “the culture wars of the past.” Without going into detail, because that detail would be pornographic, the National Endowment for the Arts found itself in a great deal of controversy, particularly in the 1990s because of the federal subsidy of exhibitions that could only be described as both blasphemous and pornographic.

But if there is an argument to be made for cutting the federal budget, that argument is otherwise known as reality. And if that reality is going to have any kind of moral frame of reference, the federal government would cut first those programs that could be conducted by someone else, those programs that would relate to what the federal government must not of necessity do. The argument here, and you see it even this headline, is that there are those in both parties, even some Republicans, who are arguing that we can’t possibly really make cuts to the National Endowment of the Arts, much less to eliminate this entire program and turn it over to private funding because to do so would lead to hardships now we know in all 50 states. The argument is going to be made that cultural deprivation will set into the country if the federal government does not continue the funding of the arts to these programs, not only the National Endowment for the Arts but also the National Endowment for the Humanities.

President Trump also called for defunding much of public broadcasting, in particular National Public Radio. This too has been something of a bur in the saddle of conservatives for a very long time precisely because of the general, very liberal bent of this tax subsidized media service. But at the same time, there are conservatives who appreciate National Public Radio for its in-depth reporting. The question is, should this be a budgetary priority of the federal government? In an age in which there is an avalanche of news coming from almost every direction, how can it be justified that there would be millions and millions of dollars, tax dollars confiscated from the American taxpayers, that is used to subsidize what is by any estimation a generally liberal news source.

The editors of the Wall Street Journal pointed out that almost all of the controversy about President Trump’s budget proposal is coming down to an incredibly if not insignificant portion of the budget. The major portions of federal spending are off-limits even by the President’s own declaration. But the politics of this is also just unavoidable. Friday’s edition of the Wall Street Journal had a headline,

“Trump Budget Likely to See Major Rewrite in Congress Some GOP lawmakers praise plan to trim waste but object to cuts that hit close to home”

Now when you consider that headline, that’s the entire problem in a nutshell. If there is going to be any meaningful realignment of the federal budget that will mean less federal spending somewhere and that somewhere is going to be in some Congress person’s district. Given the reach of the federal government that means virtually every single congressional district. Every single United States Senator, every member of Congress is going to face the reality that if there are any budget cuts there will certainly be someone in that district and in that state who will be affected. The very same day, the New York Times ran a story with the headline,

“G.O.P. Finds Spending Plan Tough to Love.”

But any kind a budgetary reduction is going to be hard to love because there will be a price that will be paid for any cuts in federal spending in any program. Of course the failure to make these hard decisions—this is something that has been postponed by the United States Congress now for over two generations—the failure to deal with this will have catastrophic financial implications for our children and our grandchildren. Effectively, the overspending of the federal government today, it’s also true lamentably of many municipalities and state governments as well, that overspending is effectively a massive tax burden that is now being passed down to subsequent generations and that Judgment Day will not be long in coming.

Christians also understand that there is enormous moral investment in that word budget. When it comes to a personal budget and personal spending, when it comes to a family’s budget, when it comes to a congregation’s budget, that’s when we find out where the priorities really lie. It was Jesus himself who said, “Where your treasure is, there will be your heart also.” And that’s especially true when we look at the kinds of headlines that are coming to us concerning the budget negotiations that will soon be very much a matter of increased headlines in Washington D.C. This is where Christians have to understand that far more than just matters of money are involved. There are also questions of morality, and some of these questions are very complicated.

There is no easy way to come up with a way of prioritizing the federal budget in every respect and bringing it into some kind of fiscal sanity. If it were easy, it would’ve been done by now. But saying this will not be easy is no excuse for not doing what Congress is elected to do, and that is to actually adopt a budget of the United States that meets with the standards of fiscal reality and rightfully reflects what should be done with the tax monies that are confiscated from American citizens. But there are many families who understand this temptation all too well, easier to decide tomorrow what you really know you should decide today. It is not merely wrong and impractical to defer the budgetary reality the United States. It is rightly understood immoral.

Part III

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Is it government's job to make us happy? International Day of Happiness had some asking the question

But next we turn to the issue of happiness, and it turns out that yesterday was the International Day of Happiness. I hope you had a happy one. In any event, it raises the huge issue of happiness and how it has now become a matter of our global conversation, a conversation that’s really interesting the closer you look.

Tania Lombrozo writing for National Public Radio tells us that yesterday was the International Day of Happiness, “the result of a UN resolution adopted in 2012 that identifies the pursuit of happiness as ‘a fundamental human goal’ and promotes a more holistic approach to public policy and economic growth — one that recognizes happiness and wellbeing as important pieces of sustainable and equitable development.”

Now in typical UN speak that appears to say something but doesn’t necessarily say anything. There are those who seem to remember that the United States Declaration of Independence refers to a right of happiness. But that’s not true. It is the pursuit of happiness that is recognized. It’s often not recognized that the founders of the United States understood that human happiness is not something that is universally defined. That is to say, there is the recognition even by those who framed and founded this Republic that human beings could rightly come individually to different definitions of what would make them happy. Indeed, some the most dystopian literature of the 20^th century such as Aldous Huxley’s Brave New World points to the danger of having a government, or in this case the United Nations, come to a determination of the fact that we should be happy and then also decide what should make us happy. It is ironic but true and necessary to say that enforced happiness is not by any adequate definition true happiness.

Several recent news stories bring this to mind. A few weeks ago, the Los Angeles Times had a story with the headline,

“Happiness minister takes job seriously.”

This is a government ministry in the United Arab Emirates. A woman whose name is Ohood bint Khalfan Roumi is the first happiness ministers of the United Arab Emirates. Ann Simmons, the reporter for the Los Angeles Times, tells us that Roumi is,

“Roumi is the minister of happiness for the United Arab Emirates, a role that was created a year ago when she was among five women appointed to the Persian Gulf nation’s 29-member Cabinet (bringing the number of female ministers to eight). Resolving domestic spats and tackling consumer complaints is not really Roumi’s job. Her position, the brainchild of Sheik Mohammed bin Rashid al Maktoum, vice president and prime minister of the UAE and the ruler of Dubai, is to promote happiness and a positive attitude in government, and life. Roumi says it’s no laughing matter.”

The minister of happiness said,

“This is serious business for the government. What is the purpose of government if it does not work toward the happiness of the people? It’s the duty and role of the government to create the right conditions for people to choose to be happy.”

That’s a statement that deserves a much closer look. You’ll notice the convolutions of it. Let me repeat it,

“What is the purpose of government if it does not work toward the happiness of the people? It’s the duty and role of the government to create the right conditions for people to choose to be happy.”

It wouldn’t take the most cynical observer of the story to ask the question if it’s not really in the interest of the government of any nation, in this case the United Arab Emirates, that its people would, in the words of the minister, choose to be happy.

Yesterday’s edition of USA Today had a front-page story on the fact that there’s now a ranking of countries by happiness; at the top were the Scandinavian nations; at number one, Norway. But a closer look at that article indicates that happiness is defined in this particular scheme as primarily about matters of economics. This is where the Christian worldview would have to bring about something of a correction to point out that happiness is, number one, not our main goal, but secondly that happiness is not something that should be defined simply by economic status. The Christian worldview would situate happiness within a far larger context of moral goods and virtues. Happiness is not to be discounted, but it’s clear in a biblical perspective that happiness can’t be commanded or orchestrated either. But don’t miss the importance of the fact that evidently yesterday was the International Day of Happiness. I predict that before long, the greeting card companies will come out with lines in which you can express your happiness, or at least your command to be happy, in alignment with this new holiday. But perhaps the most important aspect of this day is the fact that most of the citizens of the world most assuredly didn’t even know that it happened.