The Weakest Branch

As many of you undoubtedly know, the federal government is made up of three branches: the executive (the chief executive being the president), the legislative (congress), and the judicial (led by the Supreme Court). When we speak of these branches, we often say that they are “co-equal,” meaning that none is supposed to be more powerful than the other, and that each is supposed to treat the others with respect.

The truth, however, is that the branches are not equal. By far, the executive branch is the most powerful, and this is for three reasons.

First, unlike the other two branches, its decision making ability is consolidated into one person, the president, making it able to take quick and decisive action – a necessary and useful trait in time of war.

Second, the president is the commander-in-chief of the military meaning that, in theory at least, he or she has the power to bend the other branches to his will by literally holding guns to their heads. Although this has never actually happened in American history (yet), don’t think that the other branches aren’t aware that it could.

Third, the fact that the executive holds all the guns also means that it doesn’t have to follow the orders of the other two branches, as when Andrew Jackson famously refused to acknowledge the Supreme Court’s ruling that he didn’t have the power to forcibly remove the Cherokee people from Georgia to Oklahoma (“the Trail of Tears”), and did it anyway. “[Chief Justice] John Marshall has made his decision,” he’s reported to have said. “Now let him enforce it.”

Congress is the second most powerful branch because it holds “the power of the purse.” Simply put, while the president commands the military, congress funds it. If the president attempted to use the military in a way that congress disapproved of, congress could simply undermine that action by revoking the military’s ability to get paid.

And what of the judiciary? Without the power to wield either guns or money, what power does it have? None, other than its credibility.

The Supreme Court’s power has always derived from the people’s respect for it. Its members are presumed to be learned, thoughtful and impartial, and so their decisions carry a certain esteem.

But that will remain true only for as long as the people believe that the court is impartial. And that is one of the reasons why we are living in such a dangerous time.

Public respect for the court has been plummeting since Bush v. Gore, and it is now to the point where nobody truly expects impartiality from the court anymore. Instead, we all expect the Justices to decide cases according to their political preferences. Time and again, the Justices have met that expectation.

This is very bad, because a court that does not command the respect of the people has no power at all to function as a check on the other branches. “Now let him enforce it,” President Jackson said. Justice Marshall couldn’t enforce it, and 4,000 people died. In the end, it is always the citizenry that the court ultimately relies upon for its validity. But trust in the court has been lost. How can it be regained?

It seems pretty clear to me that our current president is on a collision course with the judiciary. He will be indicted and the court will soon be asked to decide the extent to which those indictments can stand. In anticipation of this, President Trump is packing the court with loyalists. The damage to the court’s reputation would be incalculable if these loyalists were to absolve him of his crimes.

Thus, it seems obvious to me that any judge worthy of the title ought to recuse themselves from deciding the fate of the very person who nominated them to the bench in the first place. Judges often obsess over the mere appearance of impropriety, and rightly so. Are the people on the court today so lacking in character that they wouldn’t care to avoid what all would recognize as actual impropriety?

We do not have to accept such a court. Let us watch it closely. Let us demand impartiality from it. When the president’s case makes it to the court’s docket, let us demand that Justices Gorsuch and Kavanaugh remove themselves from it.

The Supreme Court has gotten a pass for too long. We have the right to demand that it do its job and stop all the politicking. Our government’s integrity is only as strong as that of the weakest branch.

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The Tribe of Chopin and Slash

I went to law school knowing that I wanted to try cases. That’s all I wanted to do. I knew there was money, big money, to be had in transactional work – negotiating contracts, etc., but I didn’t care about that. I wanted to battle.

Luckily, I was in Chicago, and so I was able to observe many great trial lawyers. And here’s what I noticed: I wasn’t like most of them. I wasn’t loud or outgoing. I didn’t have what seemed to me to be an almost pathological need to impress people (one lawyer’s waiting room was wallpapered with news articles about his courtroom victories, another’s office was covered in drawings of himself arguing cases). Instead, I was quiet and reserved. Those lawyers mistook my introversion for shyness, and decided that they didn’t have any use for me.

I was angry and upset about their rejection for a while, but then I just got on with trying cases. It’s been fine. Despite what those guys might have thought, I haven’t collapsed in tears or passed out during a trial yet. Not even once. I’m an introvert. That doesn’t mean that I can’t perform. It just means that I’m not going to get all in your face about it.

I’ve been thinking about this because I was listening to an interview with Slash the other day and he mentioned not liking to sing or promote albums and it hit me: He’s an introvert, like me. And he’s awesome.

I imagine that when Slash gets on stage, he feels much like I do when I start a trial. I enter a kind of Avatar State. Some usually dormant part of me comes to life and fills me with energy and I can just do it. I get activated. And then I go home and don’t feel the need to prove anything to anybody until the next trial.

I mean, here’s how I see it: there are Chopin fans and there are Liszt fans. You can admire and respect them both, but if you listen to them long enough you’re going to be drawn to one or the other.

Those Chicago guys were Liszt lawyers, full of bombast and flash. That’s fine, but it’s not for me. I’m not impressed by spectacle.

I prefer Chopin. On first listen, maybe his music doesn’t grab you in quite the same way that a piece celebrating Mephistopheles might, but something about it keeps you coming back, and you start to hear more and more, and the profundity of what you missed in those early encounters – because Chopin didn’t come right out and tell you about it – starts to be revealed.

Don’t get me wrong: I don’t have anything against those extroverted Liszt lawyers. Many of them are great, and their Steve Vai brand of showmanship can get results. But if that’s not who you are, don’t worry about it. The courtroom is just another stage, and there’s a place for the Slashes and the Chopins too.

[More on the differences between Chopin and Liszt: Chopin v. Liszt: Teaching Style Showdown.]

A Calm and Reasonableness Like the World Has Never Seen

December 2, 1942, is not a date that has lived in infamy, and yet it is one of the most important dates in human history. That is the date upon which mankind probably sowed the seeds of its own destruction.

On that Wednesday afternoon, under the racquetball courts at the University of Chicago, Enrico Fermi and his group of scientists popped open a bottle of chianti. Moments before, “Chicago Pile-1,” the world’s first nuclear reactor, had gone “critical” and become self-sustaining. Mankind had unlocked the power of the atom.

The output of CP-1 was minimal – barely enough to energize the filament of a light bulb. And yet, so diligent were those who sought to amplify that power that less than three years later an atomic bomb was dropped on Japan that detonated with the same amount of force as 15,000 tons of TNT, killing 80,000 people. Many thousands more subsequently died from burns and radiation poisoning. Three days later (today is the 72nd anniversary, in fact), a second bomb was dropped.

Instead of looking at the wasteland that these bombs created and viewing them as something that should never have been done, people went in the opposite direction, building thousands more of these bombs, some of which are hundreds of times more powerful than the ones that were dropped on Japan. And here we are today, all of us living under the threat of nuclear annihilation. It is a heavy burden. Oppenheimer and Stimson thought little of tomorrow’s children when they sought to become death. I cannot be the only parent in America who darkly wonders as he drives his daughters to school whether this is the day when they might be vaporized. [As it turns out, I’m not.]

Now, we have a situation. Despite numerous attempts to get North Korea to abandon its nuclear aspirations, it seems that the North Koreans may have finally developed a bomb that is capable of reaching the United States. The president has threatened nuclear war. The very concept is madness, and yet we inch closer to it. Already, I sense the leadership in Washington priming the public to accept the argument that they had no other choice.

I reject that. Here is another choice: talk to them.

Begin those talks by acknowledging the reason that diplomacy has failed. Admit that a policy of “we reserve the right to destroy you at any time while also rejecting your claim to defend yourself by similar means,” is merely hypocrisy masquerading as diplomacy; “trust us not to destroy you,” is not something that any hostile sovereign power can reasonably be expected to accept.

How about taking the hypocrisy out of things and simply saying, “we don’t think you should have nuclear weapons and, guess what, neither should we? No one should. So here’s the deal: abandon your nuclear program and we will abandon ours. Truly. Not only will we cease construction of any further weapons, but we will also begin the immediate dismantling of all of our current weapons. It’s going to take us some time, because we have so very many of them, but in ten years the people of North Korea will no longer have to live in fear of nuclear attack from the United States.”

This is radical, I know. “We can’t do that,” you’re thinking. “The Chinese and the Russians will never follow our lead. We’ll be vulnerable.”

It’s okay, just breathe. First, I actually think that if we began a complete and unilateral draw-down of our arsenal, the Chinese and Russians might follow our lead because they could no longer justify the risk and expense of maintaining their own arsenals. But even if they don’t, it doesn’t matter because of the simple truth that for some things there is no sufficient justification. The mass incineration of children is one of those things.

I want you to engage in a little thought experiment with me. It’s going to be a touch uncomfortable, but I think it’s necessary in these times.

Imagine that you’re in a room by yourself and you’ve just received word that the enemy has launched their nuclear weapons. Our defenses have failed. In ten minutes all of America will be lost.

But, on a control panel in front of you, there is a large red button. Pressing the button will launch our devastating and unstoppable retaliatory attack. There is nothing left on earth for you to do now except to push it, or not push it.

Do you push it?

In your mind, push it, and ask yourself what you have done, really. Have you saved your country? Have you done something that the withered remnants of humanity will thank you for? Have you done what Jesus would have done?

The development of the atom bomb was folly; mankind is too impulsive, unpredictable, and accident-prone to control such power — that we haven’t killed ourselves with it yet is nothing less than a miracle. But now we have an opportunity. We can use this opportunity to further prove our unworthiness to possess deep knowledge, or we can use it to save face while walking back an advance that should never have been made.

The people of my generation had no choice but to be born under a nuclear threat. What better gift to give to the next generation than to sweep that threat aside?

Ought we not to at least try?

Afghanistan

[So it goes.]

[I wrote the op-ed below in January of 2011. I shopped it around to several news organizations, but it didn’t meet with any interest.  Reading this article, however, it still seems relevant. Noor Jahan Akbar, who is quoted in the piece, is correct: “A mind-set built over 100 years takes longer than 10 years to change.”]

As Americans assess our progress in the war in Afghanistan, we are right to question whether this war can actually be won. After ten years of struggle, Taliban fighters still operate unchecked in large parts of the country, and the Afghan government remains corrupt and weak. Indeed, even the White House has characterized the gains that have been made as “fragile and reversible.”

However, I think it is proper to view the war as entering a new and unavoidable phase in which gains can not solely be expected to be generated by the military. Our armed forces have already succeeded in clearing the Taliban from Afghanistan ’s major cities, as well as in making those population centers secure. Now, if the work of nation building is to continue, a large-scale civilian effort is needed to establish educational institutions in the areas that have been secured, and to encourage intellectual exchange between the people of our two nations.

With regard to the importance of establishing educational institutions, it is important to recognize that this is a war of ideas. Consequently, education is a critical means to success in Afghanistan. To understand why, consider that the number of enemies that we could potentially face in Afghanistan is limitless because what makes a person a Taliban is not who they are, but what they believe. The only way to defeat them, therefore, is to destroy their argument, and the only way to do that, is to articulate a better one.

For this purpose, a military presence alone is not enough. To address the non-military problems of misinformation and misunderstanding that abound in Afghanistan , non-military personnel are required. For example, as was recently suggested by Professor Dominic Tierney in the Los Angeles Times, Afghanistan needs administrators to establish cultural and educational institutions.  It also needs teachers to confront its astonishingly low literacy rate, which Professor Tierney places at thirty percent – less than the literacy rate of America in 1650.

In addition to establishing an educational system, a relationship must be fostered between the people of the United States and Afghanistan, since a large part of the animosity that exists between us is premised on a false concept of who we actually are. It is unrealistic to expect this to be accomplished through the medium of a camouflaged Marine riding in an MRAP, shouldering an M16. Appreciation and respect for one another can only be achieved through direct civilian contact.

There are many ways in which this contact might occur. Instituting an exchange program whereby people from each nation can learn about one another might be one useful program. There are others, but the specifics of these do not really matter. What does matter is that the people of our two countries be allowed to engage with each other. This will, of course, be expensive, risky, and difficult, but it is also necessary if we are serious about establishing true democracy in Afghanistan .

Finally, there will be those who say that Afghanistan is already lost. The wiser course, they may argue, is to cut our losses and leave. My response is that, although we have spent years prosecuting this war, to what extent have we acted with the understanding that this never was a conventional war of battlefields and front lines, but an unconventional one of ideas? In other words, how much effort have we spent in enlightening, rather than merely securing, Afghanistan ?

“Ignorance is of a peculiar nature,” wrote Thomas Paine. Once dispelled, “it is impossible to re-establish it,” for ignorance is “the absence of knowledge; and though man may be kept ignorant, he cannot be made ignorant.”

The Taliban seek to keep the people of Afghanistan ignorant of who we really are and what we really stand for. If we commit to the education of the Afghan people – for example, by making a concerted effort to increase the literacy rate – reason can prevail over ignorance. Furthermore, if we show that we are invested in them by helping them build the institutional foundations that are necessary for their prosperity, we may come to respect, rather than fear, one another.  In these accomplishments lie the seeds of victory.

One Little Victory

Last month marked my ninth year as a public defender. In that time, I’ve fought a lot and lost a lot (one of my clients is serving forty years for murder, another is serving life), and it often seems that all I’ve accomplished is … nothing, other than the right to say, “but I tried, goddamnit. At least I did that.” Every once in a while though, I almost remember why I took the one less traveled by.

This morning, I stepped into a courtroom and saw an inmate waiting in the jury box. The public defender for that room was busy at the bench, so I pulled the inmate’s file and saw that he was in custody for missing a court date on a charge of driving on a suspended license.

I talked to the inmate and heard a familiar story: he couldn’t post the $500 bond, he missed his court date because he couldn’t get a ride, his mother was sick, etc. Since his license was suspended for a DUI, I told him that he was facing a mandatory minimum of ten days in jail if the judge convicted him. He started crying. I told him that the judge could choose to give him supervision instead of a conviction, in which case he would be released today, but that there were no guarantees – the judge could convict him and give him more than ten days. (Of course, I also told him about his trial rights.) He chose to roll the dice.

After that, I did what I’ve done hundreds of times: I argued for my client’s freedom. I explained to the judge why he missed court. I told her of his family situation. I minimized his criminal history. I hoped for the best. He got supervision and a jail release, and I was relieved. And then I left the courtroom and forgot about the whole thing.

Hours later, as I was waiting for the afternoon train home, a man approached me. Dressed in regular clothes instead of the jail’s orange jumpsuit, I didn’t recognize him. “You’re the PD who helped me out this morning” he said. “Thanks.

[Drop Cap by Jessica Hische.]

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