Tuesday, March 22, 2022

Part I

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Opening Confirmation Hearing for Judge Ketanji Brown Jackson Sets Stage for an Important Week in American History

The confirmation hearings for Judge Ketanji Brown Jackson began yesterday just as predicted, and just as predictively, the battle of ideas ensued. Now, the conversation today did not have a great deal to do with what was said before the judiciary committee because there wasn’t that much said. It was instead a conversation that took place in the larger culture, particularly in the commentary class, and most of that conversation was setting things up for what will happen today in a very long, very sustained process of the hearing where every single member of the committee is to have 30 minutes to ask questions of the nominee.

We’ll be talking more about that process in just a moment. But let’s understand what did happen yesterday. For one thing, there is the formal introduction of the candidate, in this case, a nominee to sit on the Supreme Court of the United States. Yesterday on The Briefing, we discussed the biography of Judge Ketanji Brown Jackson, and she was formally introduced yesterday in the hearing and she had the opportunity to make a response. Now, one of the things we need to observe, given the current way these hearings work, is that the more a nominee says, the more likely the nominee is to say something wrong that might derail the entire process, giving the enemies of the nomination and potentially of the nominee an opportunity to gain some political capital.

So, the advice given to nominees is, “Be nice, smile, say as little as possible, what you do say should be reduced to banalities.” And that’s pretty much what happened yesterday. This is not so much the fault of Judge Jackson, it is now baked into the cake of these hearings. The judge spoke of her gratitude. She said, “I must also pause to reaffirm my thanks to God for it is faith that sustains me at this moment.” One of the issues we’re going to be looking at is that Judge Jackson is nearly unique in refusing largely to speak to the content of that faith, leaving people wondering what exactly her religious faith is. Some form of Christianity evidently, again, more on that in just a moment. She went on to say, “Even prior to today, I can honestly say that my life had been blessed beyond measure.”

Now, there’s nothing particularly wrong with that statement, but it does point to something else, and that is the reference now to God’s providence as simply blessing. Oprah Winfrey is one of the people who has popularized this in the larger culture, speaking of the experience of being blessed. And many people have noted that basically secularized that vocabulary. It became something that is simply a matter as if somehow fate in the cosmos, perhaps even accident, or for that matter, some kind of God had brought about something good. Thus, we are blessed. She spoke movingly of her experience, especially with her parents born there in Washington, D.C. Her parents are public school teachers. Her father eventually went into the law and he became very much a role model for his daughter, who of course has now been nominated to the United States Supreme Court.

Winsomely, she told the committee, “My very earliest memories are of watching my father study. He had his stack of law books on the kitchen table while I sat across from him with my stack of coloring books.” A very endearing picture, indeed. She spoke of love for her husband, Dr. Patrick Jackson, a surgeon, and she spoke of their children, two daughters, Talia and Leila. And she went on to acknowledge the fact that they had paid a price for a mother serving in such a prominent capacity. Having served as a clerk to three judges in the federal bench including Supreme Court Justice Stephen Breyer, she went on to pay tribute to Justice Breyer, whose seat she will fill if confirmed by the Senate.

She went on to say, “On the day of his Supreme Court nomination, Justice Breyer said, ‘What is law supposed to do, seen as a whole? It is supposed to allow all people, all people, to live together in a society where they have so many different views, so many different needs, to live together in a way that is more harmonious, that is better so that they can work productively together.'” Now, we’re going to be noticing something. That is not a statement made by accident either by Justice Breyer on the day of his confirmation nor by Judge Jackson on the very first day of her confirmation hearings. A statement is being made there. It is basically a statement that she disavows any particular judicial philosophy.

Now, as I’m going to argue, there is no way that a judge operates without a judicial philosophy. Every single person operates out of a worldview. That person may operate inconsistently or consistently. But nonetheless, the worldview is determinative eventually of how we are going to think and how are going to live. And for a judge, how the judge is going to decide cases, even more importantly, how the judge is going to interpret the law and to the supreme law of the land, the Constitution of the United States. Now, on the very first day of her hearings, it’s interesting that an article appeared in The Washington Post by columnist Paul Waldman entitled, “The Two Phoniest Words You’ll Hear During Ketanji Brown Jackson’s Confirmation.”

He says those two phony words are judicial philosophy. He then went on to write, “The phrase,” and that means judicial philosophy as a phrase, “should raise red flags because it’s a signal that the person using it is about to pull a fast one, either to claim they themselves believe something they really don’t or to pretend that an attack they’re making on Jackson is far more high-minded than it actually is.” He points to the fact that many Republicans have said that what they want to consider in the course of these confirmation hearings for Judge Jackson is her judicial philosophy. She says she doesn’t have one. She’s actually said that. She does have one, otherwise, she could not operate as a judge. And this is where you see a major left-right divide.

On the right among conservatives, judicial philosophy has become a central concern, an unavoidable topic, the number one issue in considering whether or not a judge should serve on the bench much less, serve as the justice of the Supreme Court, the nation’s highest court. Over time, conservatives learned we must give incredible attention to judicial philosophy because a lack of attention to judicial philosophy is what led to the liberal takeover of the courts in the 20th century. On the left, there are some who do identify with a judicial, or a legal, or a constitutional philosophy. But when it comes to evasion, in this case, the evasion is going to be on the part of Judge Jackson if she continues to say that she doesn’t have a judicial philosophy.

Or we might say that stating that you don’t have a judicial philosophy means that your own judicial philosophy is going to be developed case by case. So, at this point, I want us to look at two rival ways of looking at the U.S. Constitution. What are the issues that really are at stake? On the conservative side, the word used to describe a judicial philosophy come down generally to textualist, originalist, strict constructionist. That’s a lot of language. We’ll be looking at it in just a moment. On the liberal side, the schools break down into the pragmatic, the sociological, the progressive, and the critical. You say, “Well, that’s an awful lot of vocabulary.” Trust me, it gets really interesting.

Part II

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A Clash of Judicial Philosophies: How Should Judges Interpret the Constitution?

Well, buckle your seat belts because we are going right into the heart of some of the biggest controversies of our age here.

The question is, what is the role of the Supreme Court? How are judges to operate in interpreting, first of all, the Constitution and then the statute of federal law? How are judges to interpret the words, the sentences, the paragraphs? Throughout most of human history, at least in terms of the experience of Western civilization, the assumption is that the words themselves and the structure of the words formed into sentences are to be understood as the textual authority, which is to say the authors said what they meant. They meant what they said. And so, the task of interpretation was generally coming to terms with what the authors said and what they were understood to mean at the time. So, that means, looking at history, yes. It also means most importantly, looking to the text.

So, the textualists are those who say, “Look, it’s the text of the Constitution, it’s the text of the law. We still speak the same language. We can know what they meant.” Furthermore, when it comes to say the meaning of the Constitution, the framers of the Constitution, in their debate about the Constitution, made even more abundantly clear what they meant and what they did not mean in the language of the Constitution. That’s not to say there are never open questions. It is to say that the questions are decided by the text. The originalists are those who say it goes back to the original intention. Again, that’s very much like textualism. The words say what they mean, they mean what they say. And then, strict constructionism which means that the construction of the text, the interpretation of the text, is to be strictly according to the words, the grammar, the intention.

The words matter, the text stands. That’s the conservative way of interpreting a text. And by the way, that is the conservative way of interpreting the Bible. And when we conclude this morning on this issue, we’re going to look at the parallels between the interpretation of the Constitution and the interpretation of the biblical text. The same basic issues are at stake. And in both cases, the approach of conservatives and the approach of liberals turns out to be on both the legal and the theological fronts, pretty much the same. On the liberal side, I used four words, pragmatic, sociological, progressive, and critical. And those are historical. In other words, if you go back and say, “When did all this change,” it basically changed in the 19th century.

In the 19th century, many people in the United States, on the left, they styled themselves progressives in many cases, they understood themselves to be coming up against a very old constitution that was holding back a nation in its rapid development into an industrial age, into a transcontinental nation, into a far more diverse population. The argument was, the law no longer can simply be restricted to the words of the statutes and the words of the Constitution. By the time you get to the early 20th century, Woodrow Wilson at Princeton University, who would eventually become president of the United States, had actually come to the conclusion that the nation was being held back by its constitution.

The Constitution, he argued, would have to grow with the nation. But he didn’t mean by that through the process of amendment, he meant through the process of judges and legislators pushing the boundaries of the Constitution and exceeding those boundaries where needed. But the big change came in the 19th and especially in the early 20th centuries with the development of pragmatism. Pragmatism was not only a new way of looking at the law, it was a transformative new way of looking at truth. Rather than truth being an objective reality, things were inherently, objectively either true or false, instead, truth became something far more functional. By the time you get to someone like Harvard philosopher, William James, it would be defined as pragmatism, meaning that truth happens to an idea.

In other words, an idea is true because it works and it’s measured in terms of how it works in a social context. So, out with the idea of objective right and wrong, out with the idea of objective truth, out with the idea of the authority, of a written constitution as bound by its words, in with experimentation to discover in an expanding, evolving society what would work. You understand how that fuels the liberal agenda. But after pragmatism came a sociological understanding of the law, and this has had vast influence. The sociological understanding of the law says that the role of judges is to come up with judicial decisions that will serve society, taking into account not only the text of the Constitution, but sociological data.

Now, one of the most famous of these decisions was the Brown versus Board of Education decision handed down in the 1950s ending school segregation. The big issue here is that the justices turned to sociology even more than constitutional law in making their arguments. Interestingly, some of the same developments came in the privacy decisions including the Roe v. Wade decision legalizing abortion. In that case too, you had the judges bringing in a lot of sociology, not so much constitutional law. Now, there are two other words I use, progressive and critical. The progressives are those on the left who say that it is the purpose of the judge to encourage, to foster, and where necessary, to drive social progress.

Now, you’ll notice again, there’s not a lot of reference in this movement to the text of the law, the text of constitutions. For that matter, that’s not really the preoccupation. This is the idea of the judge making a difference for good in society. But of course, that means that it’s the authority of the judge, not the authority of the Constitution in reaching those progressive conclusions. And you’ll also note, this means on issues whether it’s sexual morality or many other issues, the judge using the bench as a way of furthering moral agendas, often in issues that of course aren’t even addressed in the Constitution, issues such as abortion. But there’s more here and that’s the last word, critical. And this is where there’s so much conversation about critical race theory.

But the word critical in that same context first really came to fore in the minds of many, especially in the academy, under the rubric of what is known as critical legal studies. And this is a step far beyond the pragmatic, the sociological, or even the progressive. Because the assumption of critical legal studies is that the law, as it stands, is inherently oppressive, that it is actually the role of the judge to free humanity from the prejudice and the oppression that is represented in the law as it was adopted in previous times, understood to be oppressive times. This means not only denying that the Constitution is to be the authority, to be interpreted just as it is written, rather it is the assumption that the Constitution itself is evidence of prejudice, and oppression, and patriarchy and worse.

Sad to say, it is critical legal studies that in many cases, hold sway in the nation’s law schools. And even though you’ll hear it routinely denied by many people on the left, it works its way through the entire society. Yesterday, the ranking Republican on the committee, Charles Grassley, said that it would be the role of this committee to ask the nominee questions related to judicial philosophy and it would be the responsibility of the nominee to respond honestly to the committee. It’s going to be very interesting to see how much of a response the senators are able to get out of this nominee. There can be absolutely no doubt that she is on the liberal side of the equation. That was made clear when President Biden nominated her even over against demands on the part of many democratic politicians that he nominate a more conservative judge, in that case, a judge from South Carolina.

By the time President Biden made the announcement of his nomination of Ketanji Brown Jackson, she already had the support of many liberal groups. She also has the support of groups like the Fraternal Order of Police. But it’s unclear how all of this is to be understood in the mind of Judge Jackson and only she can explain it. Over time, of course, we’re all going to discover it, but that will be after she serves on the nation’s highest court. But before leaving this issue, I just want to remind us all that today’s confirmation hearings are going to be absolutely crucial. They’re going to be fascinating, no doubt, on both sides of the equation. We’re going to see revelations in terms of the questions asked by senators, we’re going to see, at least we can hope, some revelation coming from Judge Jackson.

And over the course of 30 minutes, at least some senators are likely to be able to put her in a position where she’s going to have to answer some questions with some degree of directness. Then again, that’s what they’re hoping she will do and that’s what her White House handlers are hoping she will not do. And that, by the way, is bipartisan. Conservative nominees and the liberal nominees these days are both told by those coaching them for the confirmation hearings to say as little as possible, to disclose as little as possible.

Part III

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Parallel of Law and Theology: How A Reader Reads One Text Will Affect How He Interprets Another, Including the Bible and the U.S. Constitution

But I said just a moment ago that all of this has a parallel in theology, all of it has a parallel in how we read the Bible. As we are reading the Bible or as we are reading the Constitution, those are not equal.

The Bible is inerrant, infallible, inspired by God, the Constitution is not. But the point is, they are both texts and a responsible reader has to read and understand both texts. And in both cases, there are liberals and conservatives in the modern age. And even as you have liberal and conservative interpreters of the Constitution, the more conservatives saying, “It’s the words of the Constitution. We are bound by the Constitution,” and the more liberals saying, “No, instead we’re going to find an inner logic of the Constitution like what we will claim to be a right to privacy and we will simply expand that far beyond anything that the framers of the Constitution would’ve understood.”

You see also the assumption in that particular logic that whatever the Constitution is when it was adopted, it was adopted by people who probably had their own very limited ideas put in the Constitution, and thus liberation comes by, freeing society from those ideas. Now, just go across the aisle into the Department of Theology and you’re going to find the very same parallel. You’re going to find the fact that liberals are arguing that the text of the Scripture is not to be interpreted by in historical, grammatical means of interpretation, rather it is to be interpreted in such a way that truth is liberated from the text. And the word critical comes into this as well.

You have critical legal studies, but you also have the development of biblical criticism or higher criticism as it was known, on the liberal side in theology. The assumption again is that the authority is not going to be in the text, the authority is instead in the interpreter and the interpreter must decide an acceptable meaning of the text for today and for today’s needs. On both sides of the equation, whether it’s constitutional law or biblical interpretation, the assumption of those on the liberal side is that regardless of what the text might have meant or the authors of the text might have intended at the time, human liberation is going to require a more expansive understanding. And that might mean at times, simply abandoning the clear teaching of the text.

And you see that happening right now. You see it in the shift of those who are interpreting the Bible in a more liberal direction from saying about texts that, for example, make very clear a condemnation of same-sex sexual relations. You have seen a development from people who say, “Look, maybe the text can be interpreted a different way to what is now routinely found in more liberal circles where they say, ‘Well, that is what the text says, but a modern, sophisticated religious movement has to free itself from such outdated concepts.'”

Part IV

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The Toads are Smoked? Psychedelic Venom of Sonoran Toad Shows New Lengths Humans Will Go to Escape Reality

But finally, as we’re thinking about our society and wondering how strange things can get, well, just consider a headline recently in The New York Times, “Demand for This Toads’ Psychedelic Venom Is Booming. Some Warn That’s Bad for the Toad.”

Well, indeed it is bad for the Bufo, that’s what they’re often known as. These venomous toads and the venom, by the way, is mostly secreted through glands on the back of the enormous toads. The toads have been spread throughout the American Southwest but they’ve largely disappeared in California, hold that thought for a moment, and they are disappearing also in the deserts of places like Arizona because devotees of smoking their venom are killing the toads, taking the venom, and then smoking the venom in order to get high. Evidently, there is some effect. People, we are told, are paying anywhere from $250 for a ceremony in the East Texas woods to $8,500, as Simon Romero tells us, “For a more gilded beachfront setting in Tulum, Mexico to consume the venom.”

You’re going to love the next paragraph, “But in a sign of the unintended consequences of the psychedelic resurgence, scientists are warning that the scramble by users to obtain the toads, involving poaching, over-harvesting, and illegal trafficking,” yes that’s right, illegal toad trafficking, “in arid expanses straddling the border with Mexico, could trigger a collapse in the Sonoran desert toad populations.” Now, the article tells us that there’s a divide between those who are more organic and those who are less organic. It turns out that the chemicals that come together in the toad’s venom can be replicated in a laboratory. But wait, that’s not organic. And so, those who want to have both the psychedelic experience and the authenticity of the organic can only get the toad venom from, well, you figured that out, the toad, whether the toad is willing or not.

Now, as I say, these toads have disappeared from Southern California and the suspicion is they may have been smoked. They now are no longer routinely found in the region. But we are told the Sonoran desert toad can still be found at parts of Arizona and Sonora in Northwest Mexico. It turns out that the venom of these frogs remains effectively illegal in the United States where it is scheduled along with other drugs as a Schedule 1 substance. But you can go to a retreat in Mexico, where we are told it is legal, and ceremonies are also taking place in various parts of the United States where we are told, “Law enforcement agencies are largely tolerating its growing popularity.” Now, you may say, you know how venom is extracted from snakes, but how exactly would it be extracted from toads?

Well, it turns out that you tickle under the toad’s chin. Yes, folks, you can’t make this up. Instead, you milk a toad by having one person stroke the toad under its chin, which we are told will initiate a defensive response. The toad in defensive act will then release a milky substance, a venom that can be scraped, dried, and smoked. Now, this raises a host of questions. For instance, the question of coffee, who first saw that particular bean and thought, “Let’s roast it, grind it, run hot water over it and drink whatever happens”? In any event, I don’t know who did it, but I’m thankful they did it. I appreciate coffee. But when it comes to wondering about this hallucinogenic frog venom, you have to wonder who said, “Hey, look at that ugly frog. Let’s tickle its chin, let’s scrape whatever comes out of its back, and then let’s smoke that.”

You say, “Well, there has to be a first.” Well, the first in this case is at least plausibly dated to 1983 when Ken Nelson, identified by The New York Times as “a reclusive artist who lived in a decommissioned missile base in North Texas,” we are told that Nelson drove to the Sonoran Desert, and while there, milked a toad, dried the venom on his van’s windshield and smoked it. There are dangers, of course. We are told that in 2020, a photographer died after smoking the dried toad venom. And we’re also told, “At some retreats, operators have paramedics on standby to help people who might have negative reactions.” Again, these toads we are now told, are being trafficked and they are some of the longest living of toads, living as long as 20 years.

So, what do you take home from this? Human beings are strange, and in the name of psychedelic experience, evidently, human beings will do just about anything to escape reality. But this may help you to put two and two together. The next time you see a man carrying a fairly aged, oversized toad down the road while carrying a cigarette lighter, look out.