A Judicial Valentine

By J.F. McKenna

President Donald Trump got a jump on Cupid this year, handing America a Valentine in the person of a federal judge with, as the Associated Press notes, “a writer’s flair and polished legal pedigree.” The President’s intention is to send him to the Supreme Court to succeed Justice Antonin Scalia, who died February 13, 2016.

Like Justice Scalia, Judge Neil Gorsuch is not only a writer with flair and an enviable legal background but a jurist for whom the terms “textualist” and “originalist” are no strangers. Having served on the 10thCircuit Court of Appeals since 2006, Judge Gorsuch called his nomination “a most solemn assignment.”

“It is the rule of judges to apply, not alter, the work of the people’s representatives,” the judge said at President Trump’s announcement Tuesday. “A judge who likes every outcome he reaches is very likely a bad judge.”

All in all, quite a judicial Valentine, don’t you think?

Of course, given the sore-loser approach of Senate Democrats, this Valentine in 2017 could translate into a pre-Thanksgiving pink slip in 2018 for Sherrod Brown. The senior Ohio senator’s vote on the Gorsuch confirmation might be a nail in Brown’s political coffin, especially to voters who passed on the donkey for the elephant in 2016.

As soon as the Gorsuch pick was known, Brown announced his opposition. He declared the nominee to be “far outside of the judicial mainstream,” with rulings that deem corporations are people, are hostile toward anti-discrimination and criminal justice protections, and oppose women’s rights to basic healthcare at places like Planned Parenthood. “The people of Ohio deserve Supreme Court justices who will defend the rights of working families over Wall Street and corporate special interests – and Judge Gorsuch’s record doesn’t pass that test,” said a statement from Brown.

Memo to Senator Brown: It’s not too late to change your mind and vote in favor of the 49-year-old from Denver.

As Senator Ted Cruz of Texas said, “His academic record, his background are extraordinary,” Cruz said. “He was a law clerk to Byron White, who is John F. Kennedy’s only Supreme Court nomination – he was a Democrat himself, Byron White – and Judge Gorsuch’s record is such that he has demonstrated the intelligence, the humility, the faithfulness to law that I think Republicans are going to vote for, but I also hope and believe a number of Democrats will as well.”

More important, Senator Cruz vowed that Senate Democrats would not be able to derail Gorsuch’s nomination, telling Fox News that “one way or another, I believe the Senate will confirm Judge Gorsuch to the Supreme Court.”

To non-lawyers like me, Gorsuch is right in the mold of Antonin Scalia. The first Italian-American to sit on the Supreme Court, Antonin Gregory Scalia embraced an originalist, or textualist, approach to his decision-making.

“The Constitution,” Scalia declared, “is not an organism. It means today what it meant when it was adopted.”  See https://clevelandbusinessreview.org/2016/02/14/a-man-of-words-a-man-of-law/ .

In time Justice Gorsuch will be a “lion of the law,” just as Gorsuch called Scalia.

CBR contributor J.F. McKenna, a longtime West Park resident, is a business journalist, former magazine editor, and marketing-communications consultant. McKenna and his wife, Carol, now live in Steeler Country with their Papillions, Lord Max and Prince Teddy. Reach him at jfmckwriter23@yahoo.com .

 

We’re All Second Amendment People

By J.F. McKenna
Donald Trump rejects claims he was advocating violence against Hillary Clinton when he suggested at a rally August 9 that there might be something “Second Amendment people” can do to stop her from picking judges, telling Fox News he was talking only about their “political” power – and saying about the media coverage: “Give me a break.”
In fact, much of the press needs to give the rest of the citizenry, along with The Donald, a break.
As soon as Trump let the words fall from his lips, the pro-Clinton machine set to the task of the day, which was reminiscent of many days before­—beating on the GOP candidate. Clinton campaign manager Robbie Mook called Trump’s comments simple and dangerous, adding that “A person seeking to be the president…should not suggest violence in any way.”
Like it or not, to my mind, Trump was not suggesting that at all. He was promoting the right to bear arms within the limits of generally acceptable reason. After all, we citizens are Second Amendment people the same way we are First, Fourth, Ninth, and Tenth Amendment people. (For starters, may I suggest reviewing the 1990 case of U.S. v. Verdugo-Urquidez.)
If contemporary history texts read better for you than legal decisions, take a look at Richard Brookhiser’s ingenious, extremely well-written What Would the Founders Do? In his 2006 text the popular writer and historian reminds his audience that the founding fathers’ own defense-related backstory is linked to England’s earlier struggles with James II and its changing fortunes thanks to the Glorious Revolution in 1688. Here’s a part of Brookhiser’s take:
William Blackstone, a mid-eighteenth-century legal commentator, explained the right of ‘having arms’ as a firewall, a ‘barrier…to protect and maintain’ other rights when ordinary protections had crumbled. “It is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”
“How can Blackstone’s ‘natural right of resistance’ find a place in the Constitution in any case?” asks Brookhiser. “It is the starting point of Declaration of Independence, which opens with a recipe for just revolution.” As I wrote in June, consider just a handful of the indictments against the King of Great Britain in 1776 (and consider if the same charges do not address some leaders in 2016). https://clevelandbusinessreview.org/2016/06/29/facts-submitted-to-a-candid-world/
As does human nature, history loves an encore, no?
Again, here’s Brookhiser: “Was the Second Amendment then a bulwark of liberty, or a pious irrelevance? The framers of the Constitution doubted that any Bill of Rights was necessary, which was why they left it out. Under the Constitution power would derive from the people; how could the people oppress themselves? But Madison became midwife for the Bill of Rights, under pressure from his enemy Patrick Henry, and prodding from his friend Jefferson,” who considered it a useful prop.
As our history has shown, the Bill of Right is more than a prop, for sure. And as our current election cycle shows, there are no other Madisons, Jeffersons, or Henrys coming to the fore for the rest of us.
Let’s hang on to what we have.
CBR contributor J.F. McKenna, a longtime West Park resident, is a business journalist, former magazine editor, and marketing-communications consultant. McKenna and his wife, Carol, now live in Steeler Country with their dog, Lord Max. Reach him at jfmckwriter23@yahoo.com

A Man of Words, a Man of Law

By J.F. McKenna

By both his life and his death, Antonin Scalia reaffirmed the genius of the American culture, best exemplified by the generations-tested document securing “the Blessings of Liberty to ourselves and our Posterity.” The 79-year-old Associate Supreme Court Justice took his role as arbiter seriously, but understood that his role was but one part of the fabric of the Republic, whose solid basis was the consent of the people.

Justice Scalia, who died on a Texas hunting trip this weekend, was widely known as the model of conservative thought on the high court for 30 years. The first Italian-American to sit on the Supreme Court, Antonin Gregory Scalia embraced an originalist, or textualist, approach to his decision-making: “The Constitution,” he said, “is not an organism. It means today what it meant when it was adopted.”

From there, the Justice took this approach when he wrote the Heller v. District of Columbia decision, which declared the Second Amendment as upholding individual gun rights. In similar fashion, in a 1992 dissent, Justice Scalia charged his colleagues with “personal predilection” in reaffirming the constitutional right to abortion. “It is difficult to maintain the illusion,” he said, “that we are interpreting a Constitution, rather than inventing one, when we amend its provisions so breezily.”

And only last year, he injected expressions such as “pure applesauce” and “interpretive jiggery-pokery” into his dissent on Obamacare and tax subsidies.

Of course, what should one expect from the son of a professor of languages who had taught at Brooklyn College?

“The two most important things to remember about Scalia — apart from the fact that he was a family man and a faithful Catholic — are the following: He was a heck of a writer, and he was a defender of one of the most important institutions our civilization is based on,” Pascal-Emmanuel Gobry wrote online yesterday. “I think there’s a good chance Scalia might have wanted to be remembered as a writer first, and as a jurist second. Most non-lawyers don’t associate the law and legal documents with great reading, and I don’t blame them. But the legal profession really is all about words, and the best legal minds are by necessity minds that love words and, at least sometimes, know how to use them.”

The good Justice was just such a legal mind, as is detailed in a 2012 New Yorker piece titled “Writing With Antonin Scalia, Grammar Nerd.” Written By Alex Karp, the article follows the relationship between Scalia and lawyer-writer Bryan A. Garner. Here’s a bit of Karp’s account:

Justice Scalia had initially proposed the breakfast after declining to sit for a more formal interview on writing and legal advocacy. By the end of their meal, Scalia had changed his mind, and the two have gone on to form a productive and collegial, if unusual, working relationship. The interview, Garner’s first with a sitting Justice, took place the following October, and he has completed others with almost two hundred state and federal judges, and nine of the eleven Justices who have sat on the Court since. “You’re something of a SNOOT yourself,” Scalia told Garner as they ended their interview, invoking Wallace’s pet phrase for a grammar and usage fanatic, “and that makes me happy.” (Other SNOOTs, according to Scalia, include former Justices Harry Blackmun and David Souter. Ruth Bader Ginsburg shares their zealousness, but, Scalia said, she’s “too polite.”)

Making Your Case: The Art of Persuading Judges,” the first book co-authored by the pair, appeared in 2008. Their second book, “Reading Law: The Interpretation of Legal Texts,” was published by Thomson/West last month. The nearly six-hundred-page tome details Scalia’s judicial philosophy, which they call “textualism.”

“My calculation is we spent about eighty-five to one hundred hours side by side for ‘Making Your Case,’” Garner said. “Probably sixty of those hours, once we had a draft, we actually went through sentence by sentence, together, reading it aloud. We ended up really co-authoring every single sentence of the first book.

Justice Scalia’s words, both his legal reasoning and his linguistic crochets, will be with us for some time, as shall (pray God) The Constitution. In fact, I think it’s fair to suggest that the Justice himself would probably agree that President Obama engage his lawful right to seek a successor for Justice Scalia.

At the same time, I can’t help but think that Justice Scalia—from his new vantage point in a much higher court—is whispering in the President’s ear to choose wisely, with the People in mind.

CBR contributor J.F. McKenna, a longtime West Park resident, is a business journalist, former magazine editor and marketing-communications consultant. McKenna and his wife, Carol, now live in Steeler Country with their dog, Lord Max. Reach him at jfmckwriter23@yahoo.com .

A Vision Not Up For Debate

By J.F. McKenna

When that rabble of Republican presidential hopefuls arrives in Cleveland this August, the hotel managers will cheer. Calculating the profit from the pols, their minions and the media visiting C-town, the inn keepers are guaranteed an actual payoff connected to the 2016 election—even if other Clevelanders, along with the rest of the nation, can’t be equally certain. As of right now, even the most delusional political Pollyannas expect little more than an evening of confusing crosstalk among the top-10 GOP candidates for the White House.

Of course, it doesn’t have to be as bleak as just described. And given the national and international challenges that post-Obama America will face in January 2017—it shouldn’t be.

As management guru Peter Drucker once wrote, creating a customer—or, in this case, a voter—demands mastery of marketing and innovation. The aim of marketing, Drucker explained, is “to make marketing superfluous,” which means “knowing and understanding the customer so well that the product and service fits him and sells itself.” Drucker also insisted that the second function of a business—or, in this case, the federal government—is innovation, which the father of modern management defined as “the provision of different economic satisfactions.”

“It is not enough for the business to provide just any economic goods and services; it must provide better and more economic ones,” Drucker preached in his 1974 classic, Management, Tasks, Responsibilities, Practices. “It is not necessary for a business to grow bigger; but it is necessary that it constantly grows better.”

Which brings me to the upcoming hot August night in my hometown. What if the candidates were to junk their debate notes, jettison their over-rehearsed ripostes and pass on the empty if telegenic posturing? What if these Grand Old Partiers simply gather and present the American voter with their united vision of what the nation needs, must have and can be in the 21st century?

Kind of a revolutionary idea, in that truly American sense, no?

Without question, the framers of the Constitution didn’t agree with one another on every detail of what ensures national greatness; nonetheless, they worked out a common vision “to form a more perfect Union, establish Justice, ensure domestic Tranquility…and secure the Blessings of Liberty to ourselves and our Prosperity….”

Surely 10 folks scoring rhetorical points against one another can’t compare with the preceding eloquence—even if the stage is in good old Cleveland. But a common vision delivered from that stage is a worthy restart toward national recovery.

And there can be plenty of vision to share with that “customer” who has his hard-earned vote to invest. Take the economy, just for starts. Or as the classic comedian Henny Youngman might quip, “Take my economy—please!”

“Take the case of Barack Obama,” Forbes columnist and eminent historian Paul Johnson wrote earlier this year. “By any standards he’s been a bad President—idle, muddled, contradictory and weak. His one major achievement, ObamaCare, is likely to prove costly and inefficient….Obama’s Administration is crowded with enemies of business. If it has an ideology, it’s watered-down socialism. Obama has done nothing positive for the economy, and many of his decisions have been discouraging and obstructive to private enterprise.”

Johnson’s lyrics may sound a bit rough to the untrained ear, but his notes ring true. In this exclusive appearance near the shores of Lake Erie, the Cleveland Ten can assemble quite a common song book from which to sing this summer. And the candidates will find a receptive audience on opening night. Moreover, a tune never sticks better in the listener’s mind as when each singer is harmonizing with the others. Time enough for solo performances.

Certainly the encore that evening should focus on national security, and the candidates can start by jointly recommitting to the words of one of the country’s three basic documents: “I do solemnly swear that I will faithfully execute the Office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

You bet the devil’s in the details of that oath. I’m too experienced a business writer to believe otherwise. But the rest of America and I want to hear these job candidates, in their own words, convince us that any of one of them is up to the task of fulfilling that oath to our expectations. In a world threatened by ISIS and its thug-brethren, each voter especially wants to hear a pledge to principles, not reheated platitudes.

Overall, as my hero Drucker also wrote, “What distinguishes the leader from the misleader are his goals. Whether the compromise he makes with the constraints of reality—which may involve political, economic, financial or interpersonal problems—are compatible with his mission and goals or lead away from them determines whether he is an effective leader.”

For starters agree on that, candidates. And enjoy your visit to Cleveland.

We citizens can figure out the rest on our own.

CBR contributor J.F. McKenna, a longtime West Park resident, is a business journalist, former magazine editor and marketing-communications consultant. He is a former staff editor of such magazines as Industry Week and Northern Ohio Live. McKenna and his wife, Carol, now live in neighboring Steeler Country with their dogs, Duchess Holly and Lord Max. Reach him at jfmckwriter23@yahoo.com .