“President Trump, please nominate Judge Merrick Garland!”

One of the tragedies (and travesties) of this political era is the refusal of a Republican-dominated U.S. Senate to give a hearing to President Obama’s nominee for the Supreme Court, Merrick B. Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit.

Garland was considered a “consensus” nominee, a highly respected and qualified candidate, Chief Judge of the next most prestigious appellate court in our country after the Supreme Court.

The Senate’s refusal to give Judge Garland a hearing was highly politicized and partisan, and now provides President Trump an opportunity to choose one of two options:

  • He can choose someone from the partisan list provided by the Federalist Society/Heritage Foundation, which will certainly lead to further dismay, division and systemic constitutional dysfunction, OR
  • He can choose the best candidate, a consensus candidate who will enhance, rather than undermine, the independence of the Supreme Court and who will help mitigate the widening of the partisan schism tearing at America and the checks and balances of our constitutional government.

President Trump should choose the latter option and nominate Judge Garland.

What a brilliant stroke this would be.  The shabby, partisan treatment of Judge Garland is and will continue to be a festering sore in the history of the 2016 election and the Trump presidency.  President Trump now has an opportunity to promote some healing.

I am reminded of an Idaho story.

During the Hoover administration, our own Idaho Senator William Borah was summoned to the White House to meet with the President.[1]  It was an election year (as it was when Judge Garland was nominated).  Ninety-

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Senator Borah, Time Magazine, January 26, 1931

one-year-old Justice Oliver Wendell Holmes had bowed to age and resigned from the Supreme Court.  President Hoover, a Republican, had a list of potential nominees.  On the list was Benjamin Cardozo, a New York Democrat and a Jew.

Cardozo was considered one of the most brilliant jurists of the day.  Hoover was sensitive to Western conservative reaction if he nominated Cardozo, because the Court already had one Eastern Jewish Democrat–Justice Louis Brandeis.

Borah was then the most senior member of the Senate (the “Dean of the Senate”).  Because of his influence in the Senate and his Western leanings, Hoover called him to the White House to discuss his list of  candidates.  The Westerners were at the top of the list.  Cardozo was at the bottom.

Hoover handed the list to Borah.  Borah glanced at it and declared, “Your list is all right, but you handed it to me upside down.”

Hoover protested that geography and religion had to be taken into account.  Borah famously said, “Cardozo belongs as much to Idaho as to New York” and added sternly, “anyone who raises the question of race [sic] is unfit to advise you concerning so important a matter.”

Borah returned to the Senate and led, immediately and proactively, approval of Cardozo’s nomination.

In summary, Idaho’s Borah supported the best candidate for an independent court, not one responsive to the ambient pressure of partisan demands.

Our current Idaho Senators abdicated their responsibility in the appointment of Judge Garland in 2016, although Garland was a “moderate” pick and may be the Cardozo of our day.

I would challenge them to remember Senator Borah’s example and show leadership in the nomination and approval of the best candidate to preserve the independence of the Supreme Court and to help avoid worsening of our partisan divide.

I challenge them to promote and support the nomination of Judge Garland.

[1] Henry Julian Abraham, Justices, Presidents and Senators:  A History of the U.S. Supreme Court Appointments from Washington to Bush II  160-61 (5th ed. 2008).

Celebrating MLK Day

In this seemingly regressive period in our history, we still have a dream.

Some say the outcome of the last election has an optimistic “silver lining”:  our values have been challenged and, in response, we have risen to their defense.  I know I feel this effect.

The other night we watched the first episode of David Letterman’s new Netflix show.  It reminded me of an experience last year, when I was on a business trip to Washington, D.C.

My last meeting was on a Friday and I decided to stay through Saturday to visit the newest Smithsonian Museum–the National Museum of African American History and Culture (NMAAHC).

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It was powerful.  I was deeply moved by my visit.  What followed, though, was unexpected and raw.

So much so, I recorded it with a poem, which I would like to share today, in honor of the Reverend Dr. Martin Luther King Jr. and all who have been inspired and motivated by his words and example.

Friday at the New Museum

Closing time at the newest of the Smithsonian’s–
The National Museum of African American History and Culture (NMAAHC)–
On a warm Friday evening in Washington, D.C.,
I must have been the last, most reluctant visitor to be urged out the door.

I wandered across to the Mall,
Up to the Washington Monument
To look down to the Lincoln Memorial below, and the other way
To the Capitol Building hovering in the distance.

As I walked, I contemplated my visit
To this most important new museum,
With its auburn lattice work reaching upward,
Like lifted hands, toward the sky.

It had stirred me to my core,
As much–or more—
Than nearly anything
Before.

From my visit, I felt sadness for its record of abuse and holding back;
Anger for national plagues of “white” superiority and willingness to exploit;
Awareness of the effects of my own privileged “identity”;
Shame for my race, and a more certain desire to be cleansed.

Near the top of the hill, along the path,
Below the towering white obelisk of the Washington Monument:
I saw a mobile Jumbotron, and wandered in its direction.
It was looping the infamous “Access Hollywood” video of the last election.

There was the face and voice of the now President–
And his sad example of this other form of
Domination and abuse.
Boasting.  Blathering.

Behind the Jumbotron, in the distance,
Shrinking behind the trees,
As if with shame,
The White House.

I glanced back, to my right, at the new NMAAHC,
Where I had just witnessed its counterpoint.
A celebration of progress,
Against hateful mythologies and persistent abuse–

Concluding with an epiphany
For the grace, goodness and precedent of
Our last First Family.
Moved by an overwhelming contrast–

I began to weep.

 

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Dr. Martin Luther King Jr., Letter from the Birmingham Jail

 

Bodies Were Lying in the Street

One night in New York City, I happened upon a mafia hit, the result of competition for leadership of the Gambino crime family. Current events take me back to that night.

After law school I worked as a corporate finance lawyer at a prominent law firm and spent 10 years in the firm’s New York City office.

My wife and I had both grown up in the West and, to us, the East had always been distant and forbidding.

“It will be an adventure!” I said to her cheerfully. “We’ll spend a couple of years out there, and then move back West.” She glared at me.

I went out ahead to work and look for housing.  For a week or so, I wandered Manhattan in the evenings, searching for an affordable apartment.

On one of those nights, as I made my way back to my humble Lexington Avenue hotel, I passed Sparks Steak House on 46th Street, close to Third Avenue.

It was the night “Big Paulie” Castellano, head of the Gambino crime family, was gunned down on his way to dinner. Police tape closed off 46th street. Lights were flashing. Sirens blared. Bodies were still lying in the street, covered with sheets.

John Gotti, who had ordered the hit, would become head of the Gambino family. Guess he thought he could do a better job than Castellano.

“Better not tell my wife about this,” I thought, as I skirted the crime scene.

This was a dramatic introduction to an ugly part the City at that time. The mafia was distinctly present and projected an image of being above the law, cocky, arrogant and unrepentant.  Just look at this mug shot of John Gotti.

Gotti mug shot

At that time, some in the New York business world seemed to have inherited mafia-like arrogance, rudeness and winner-take-all attitudes. They showed little concern for relationship and trust. In negotiations, I experienced their blatant misrepresentations, threats, verbal abuse and crudeness.  This always injected stress, distrust and delay in the transactional process.

At law school, in my business negotiations class, I had learned that a negotiator will more quickly achieve optimal outcomes with a collaborative approach.  Humility, listening, honesty and respect build trust, foster cooperation and reach mutually beneficial outcomes.

In the face of the belligerent, bullying New York business style, I consistently applied what I had learned in school. My team succeeded in getting hard things done quickly and our practice grew.

This experience keeps coming back to mind (and you can probably guess where I am headed with the story).

I shudder watching from afar the negotiation style of our new President. So far, his lurching administration has left more bodies “lying in the street” than John Gotti.

This approach to “winning” shows little regard for the “other side,” or the greater good, and, with huge arrogance and a small attention span, fails to understand issues, details, process or people.  It is, to me, mafia-like and poisonous to the political setting.

Our governing institutions, with checks and balances, exist to reach collaborative solutions and achieve optimal outcomes for the whole country, without regard to political party, group identity, winners or losers.

As citizens, we must demand collaboration and resist the “me-first” attitudes promoted by the new administration and worse-than-ever partisanship.

Those attitudes are causing our country, and the world, to become more fearful, angry and divided—and more dangerous and dispirited than ever.