Monday, November 20, 2017

Part I

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Who decides if a judge is well-qualified? Politicization of ABA exposed in recent evaluation of judicial nominee

Every culture requires certain central institutions, pillars, foundations of the culture that make the culture itself possible. In terms of American society, American culture, government is one of those essential pillars. It’s only one, but nonetheless it is a very important pillar that makes our culture possible. And within government the role of the courts is extremely important. The courts and thus judges and justices fulfill a very important responsibility of stewardship on behalf of the entire society. The rightful functioning of the courts is a prerequisite then for the rightful functioning of the entire society. But that raises a crucial issue, who will sit on those courts? Who will be the judges and the justices?

Now from the very beginning this has been not only a constitutional and legal question. It has been a political question. And here is where in terms of worldview analysis we need to think very carefully. The founders and framers of the American constitutional order did not say that it would be right and healthy if judges and justices were appointed by members of the bar in particular, looking to the profession of lawyers and saying you choose from amongst yourselves who you believe should serve on the courts. Rather appointments to the courts of judges and justices, that authority was put in the hands of elected representatives most importantly in the constitutional responsibilities of the president of the United States, but not to the President alone. Our Constitution requires not only that the president would nominate, but that the United States Senate must confirm anyone appointed to a federal judgeship or ultimately to the United States Supreme Court.

Before even entering into contemporary controversies, we need to recognize just how wise that system is, and also what was intended, what was made very clear in terms of that constitutional system and requirement. What is made clear is that the courts belong to the people, and ultimately the people get to decide who will be the judges in the justices because the people will elect the representatives and the chief executive of the nation who will make the nomination and then proceed to the confirmations. In the late 1700s when the American constitutional order was coming into being, there were three very central professions to every Western society. They were the clergy and the lawyers and the doctors. Law, medicine and ministry were the three central professions. Since then, of course, there has been a multiplication of vast expansion of the number of recognized professions, and since then something else has happened. The professions have become increasingly self-designated, self-policed and self-defined.

Now from a Christian worldview analysis even at this point, one of the things we should think about is the fact that when you’re looking at these professions you are looking at professions that for the most part became exceedingly, explicitly secular over the course of the 20th century. And in the case of many of these professions, they moved in a decidedly liberal direction, sometimes with no apparent tie to their own professional identity and responsibility. The next observation in terms of worldview is that the professional societies, associations and organizations thus have in our contemporary culture an outsize influence. And sometimes an influence that isn’t well known by the American people. Here is an example drawn from contemporary headlines of controversy. Here you have the Wall Street Journal reporting and I quote,

“The American Bar Association has been a key gatekeeper for the federal courts since it began evaluating judicial nominees in the 1940s, but,” says Joe Palazzolo, reporter for the Wall Street Journal, all this is changing.

But for that matter it’s not a particularly new controversy. It has been a controversy building for a matter of years. Later in the article he writes,

“For decades, the ABA’s Standing Committee on the Federal Judiciary, the evaluation committee’s formal name, has evaluated judges for their competence, integrity and judicial temperament, issuing grades that range from ‘well qualified’ to ‘not qualified.’”

He then summarizes and I quote,

“The ratings are meant to help presidents and senators, who may not be familiar with individual judicial candidates, make informed nominations and votes.”

But over the course of the last several decades, the American Bar Association has moved progressively and very clearly to the political left. And for that reason, President George W. Bush and now President Donald Trump have derecognized the American Bar Association as having a first word in terms of certifying and evaluating presidential nominees to the federal courts. That has of course not stopped the American Bar Association and its standing committee from issuing its grades and its evaluation of nominees to the federal courts. That’s what leads to the most immediate controversy. It has to do with a judicial nomination from the state of Nebraska. In this case the nominee to the Eighth U.S. Circuit Court of Appeals in St. Louis from Nebraska is the former Deputy Attorney General of that state, Steven Grasz.

As Palazzolo reports,

“Tensions between Senate Republicans and the association, the largest organization of lawyers in the nation, have escalated in recent weeks after the ABA pronounced a Nebraska lawyer unfit to serve on the Eighth U.S. Circuit Court of Appeals,” why? Because of his, “‘deeply-held social agenda.’”

Palazzolo then tells us that in his submission of papers to the Senate panel Mr. Grasz wrote that a member of the evaluation committee that interviewed him for the American Bar Association repeatedly referred to Republicans and conservatives as you guys or you people and also asked for Mr. Grasz’s personal views on abortion, the death penalty and adoption by same-sex couples. The interviewer for the Bar Association said the lawyer tried to pressure him to admit that his personal views would infect his judicial work. William McGurn writing in the Main Street Column for the Wall Street Journal summarizes the issue this way,

“The object of the ABA’s attention is Leonard Steven Grasz, a former Nebraska chief deputy attorney general who’s been nominated for a seat on the Eighth U.S. Circuit Court of Appeals. The ABA has slapped Mr. Grasz with a ‘not qualified’ rating, saying he’s too biased and too rude to be a judge. Given that much of this rating,” says McGurn, “is based on accusations that are not detailed and from accusers who remain anonymous,” he says, quite rightly, “it reveals more about the organization that issued it than it does about,” the man at the center of the report.

Now it’s interesting that just about everyone who is writing about this controversy mentions that the word rude appears in this report without any particular documentation whatsoever. It’s not even defined. There is no elaboration. It’s also increasingly clear that the judgment of the Bar Association against this particular nominee has virtually nothing to do with his judicial temperament, but everything to do with his views, his personal views on controversial moral and social issues. Views that are clearly at odds with the American Bar Association, but views that also we must recognize represent tens of millions of Americans and furthermore represent the Chief Executive of the nation, the President of the United States, who is entrusted by the Constitution with the right to make such nominations. Nebraska Senator Ben Sasse has openly condemned the American Bar Association for what he sees as a personal assassination attempt. He said and I quote,

“The ABA is running a smear campaign based on the idea that Steve is a kale-hating, puppy-kicking monster,” but says the Senator, “no one in Nebraska on either side of the aisle recognizes that man.” That is, the man described by the American Bar Association.

The Senator also said in recent comments on the floor of the Senate,

“We should completely dispel with the fiction that the American Bar Association is a fair and impartial arbiter of facts.”

Once again, we need to remind ourselves that the American Bar Association Committee accused this nominee of holding to a,

“passionately held social agenda.”

You put that together with the fact that the interviewer for the Bar Association spoke to this nominee in terms of you people, and we have a pretty good idea of just how antagonistic the Bar Association is to conservative nominees precisely because they are conservative nominees. And we should note holding to positions that are anathema to the Bar Association on issues such as, most importantly, abortion. In terms of the maximum influence of the ABA in this process, we date that back to the invitation granted to the Association by President Dwight Eisenhower, but that was the 1950s. That was when professional societies and organizations when the professions themselves were growing vastly in terms of influence and authority in our society. But we now know in retrospect that was also the very era when they began to swerve politically, and almost every one of them swerved significantly to the left. As Christians think about our society and how it actually works, here’s a pretty good lesson for us all. A lesson that comes in just a couple of words from an American Bar Association interviewer to a presidential nominee, speaking of “you people.”

Part II

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Can you separate the art from the artist?

Next given all the controversy and debate over art and artists and well a new avalanche of sexual and moral accusations, the New York Times asked a question that really must be asked, and we have to think carefully as Christians about the answer. The question is this: can you separate art from the artist? Now we need to keep in mind that the fundamental argument about separating art and the artist has come from the cultural left rather than from the cultural right, but it is a question that gets pressed upon every single one of us when it comes to our own engagement with entertainment and art, or for that matter, with many other aspects of our lives and culture as well. But just considering what’s happened in the aftermath of the Harvey Weinstein accusations and those related to actor Kevin Spacey and so many others, of course historically, the Roman Polanski charges going back several decades in the United States, the question has been, can you actually separate art and the artist in such a way that you can appreciate the art, you can appreciate the movie, you can continue to watch the television program while being filled with moral repulsion against the artist or the actor or whoever is involved in this particular dimension of art?

Amanda Hess writing in the Critics Notebook column of the New York Times raises this issue anew, and even as she writes the article, it’s clear she understands that the terms of debate have fundamentally changed just in the course of a few years. In her article asking this question, she points back to a roundtable published in 2009 by the very same newspaper, her newspaper, the New York Times. At that time, the center of the controversy was about Roman Polanski who committed a horrible sex crime against a young girl, and yet he was protected by the artistic class and furthermore still celebrated even to the point of being given an Academy award after all of this was well known. That was back in 2009, and in this roundtable several people prominent in American culture and the cultural elites at least defended to some extent the idea that you can fundamentally separate art and the artist. Jay Parini, a well-known writer who taught then at Middlebury College asked the question, can one really separate the art from the man or woman who creates that art? Then he answers, the answer is yes, definitely. He then expanded to say there are many examples in history, too many great artists who were terribly flawed human beings, behaving very badly and hurting those around them. If anything, audiences easily make this distinction, he said. Nobody looks at a Picasso painting in a museum and says quote,

“I should not take this work seriously because Picasso cheated on his many wives and was abusive to his son.”

Now at this point I have to interject from a Christian worldview perspective, the fact that Mr. Parini misses the point that most of the people looking at that painting, for instance a Picasso at the Metropolitan Museum of Art in New York City, will be unaware of the moral context. The elites have access to that information when, especially when it comes to elite art, the rest of us simply do not have. But I would also want to make a point from a Christian worldview perspective that when it comes to an artist like Picasso, those particular accusations were actually of a piece with his larger commitment to what we would call the overthrow of traditional Christian sexual morality. Damon Lindelof, a television producer, said that he had recently considered this question back in 2009 when he was walking through a major European art museum, and as he considered art and the artist, he thought to himself,

“Man oh man, what a load of perverts.”

And yet Lindelof said he went on to consider that the art was still beautiful. He said,

“It is still eternal.”

So even as he seems to understand there is indeed a moral dimension, especially to the artist, he’s suggesting that we can look at the art independent of the artist. But here again, just keep in mind the fact that he admits that as he walked to this museum his first thought was,

“what a load of perverts.”

Mark Bauerlein who teaches at Emory University actually makes an argument suggesting that,

“The moral scruples that constrain bad behavior work precisely against the artistry needed to describe,” he means for example, “Satan corrupting Eve and to portray a rebel without a cause.”

Bauerlein went on to say,

“People understand that, and so they judge the sins of artists and writers more lightly, perhaps taking a vicarious pleasure in them. Only,” he says, “when the artist goes too far does a moral push-back arise.” He summarizes, “it’s a delicate compromise, ever-shifting as general social standards evolve.”

Well we’re talking about a roundtable, the New York Times in 2009 and let me tell you those moral standards have evolved even amongst the cultural elites in terms of what they now believe is moral and is to be expected in terms of moral judgment when it comes to artists or actors or producers or at least they say that moral judgment is changed or it has at least changed for some time for some people. Jonathan Gilmore in the roundtable who taught philosophy and humanities at Yale University at the time said,

“One may condemn an artist for her odious views without that compromising one’s defense of the art in which those views are revealed.”

I understand the argument, but I don’t think it’s quite that simple. I think as we are walking through a museum, or reading a book or we are, for that matter, observing a movie, the reality is we inescapably make these judgments if we have the information. At the very least, we understand you can’t completely separate art and the artist. You don’t have the art without the artist, and furthermore as Amanda Hess makes clear in her recent article of the Times, the reality is that we tend to play up the role of the artist in interpreting the art. She candidly points to Hollywood, suggesting that if you can understand this principle anywhere, you can understand it there where Hollywood plays up the role of the artist in the art. As she says,

“Meanwhile, the entertainment industry seems quite interested in conflating the art and the artist as long as it helps sell movie tickets.”

So recognizing the fact that we can never completely sever art in the artist, this doesn’t mean that we go through the great museums of the world taking down paintings. It does mean that we as Christians understand that we have no art without the artist, and you never have an artist of any kind because you never have a human being of any kind who is not a moral creature. And that morality is going to show in every dimension of the individual’s life. Amanda Hess seems to recognize in her more recent article in the New York Times that the fundamental separation of the art and the artist is impossible even as the cultural left has been arguing for that separation for decades now. From a Christian perspective perhaps we should put it this way, we understand that you really can’t understand art, you can’t rightly understand the meaning of art without understanding the artist. And once you understand the artist, you can ever separate the artist from the art.

Part III

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Comprehensive sexual revolution in the name of comprehensive sexual education

Finally, headline news out of Lexington, Kentucky, coming from the Lexington Herald Leader, the headline,

“Abstinence, birth control, intimacy? What should Lexington sex education classes teach?”

Well, it turns out that the catalyst for the article is the formation of a group known as Lex Ed, which is committed to bring,

“comprehensive sex education to Lexington.”

The purpose statement of this alliance is,

“We believe that Lexington’s schools deserve comprehensive sex education including medically-accurate information about reproduction and preventing pregnancy, STI prevention, healthy relationships, sexual violence, consent, self-esteem, LGBTQ health and identity, and domestic violence.”

The organization’s coordinator said that sex education across public schools in Kentucky, well, she says it’s inconsistent. She went on to say,

“many schools center their sex education around abstinence.”

I’m not going to go into any details of any sex education curriculum. I’m simply going to say that by now we know exactly what we’re dealing with when we see the term comprehensive sex education. It sounds good. Who would want a sex education that isn’t comprehensive? But what we need to understand is that that is now well recognized code language for bringing the sexual revolution, a moral revolution to a public school classroom K-12 near you. That purpose statement pretty well indicated the commitment of this organization to that sexual revolution. But just in case we missed the point, the allied organizations behind the coalition include the National Organization for Women, the American Civil Liberties Union, Planned Parenthood and the Fairness campaign, an LGBTQ advocacy organization in Kentucky. It’s being presented to the people of Kentucky as if what we really need is just a more comprehensive sex education. But what this really represents is a comprehensive sexual revolution. And this is where Christians have to remind ourselves over and over again when you say sex education you’re saying morality. The only question is whose morality?