When (And How) Is A Candidate’s Health Fair Game?

There is a very interesting Senate race underway in Pennsylvania. The race promised to be unconventional from the beginning, with tall, bald, goateed, tattooed, sweatshirt-wearing Lieutenant Governor John Fetterman taking on TV celebrity and political neophyte Mehmet Oz. But the race really took a turn when Fetterman suffered a stroke in May–an apparently severe stroke that Fetterman now says almost killed him–causing “Dr. Oz” to go on the attack about whether his opponent is healthy enough to do the job.

There are lots of issues that candidates for a Pennsylvania Senate seat would logically address, but Fetterman’s health became a focus after his campaign limited his appearances and he has had obvious problems with halting speech when he has participated in rallies. The Oz campaign, which has been trailing in the polls, has tried to capitalize on the issue by pressing for a debate. And, because modern politics can’t resist the gutter, the Oz campaign has done so in cheap and mean-spirited ways–such as by promising that it would pay for any medical personnel Fetterman might need to have on standby during a debate.

The Oz campaign tactics have been sharply criticized, but the Pittsburgh Post-Gazette and others have increasingly recognized that Fetterman’s fitness to serve is a legitimate issue. As the PPG editorial put it: “If Mr. Fetterman’s communication skills have not yet recovered sufficiently to effectively debate his opponent, many voters will have concerns about his ability to represent them effectively in Washington.” The editorial also noted that the Fetterman campaign was unduly optimistic about his condition and his prognosis, and that recovery in the aftermath of a stroke is “notoriously unpredictable.”

Yesterday the press reported that the Fetterman campaign has agreed to a debate on October 25–two weeks before Election Day. The parties are still wrangling about details, but one of the conditions that has been agreed upon is that Fetterman will be able to watch a closed captioning device during the debate to deal with his acknowledged auditory processing issues, and that debate viewers will be told about that. With a debate now on the schedule, the PPG has called upon the Oz campaign to stop the attacks that, in the newspaper’s words, has turned the race into “an exercise in insult comedy rather than a serious contest on the merits of the candidates as potential U.S. Senators.”

Anyone who has known a stroke victim, as many of us have, will recoil at a political system in which an opponent thinks it is appropriate to disrespect and make fun of someone struggling with post-stroke limitations. Even by modern political standards, that’s low. At the same time, strokes clearly can be debilitating, and it is reasonable to question, with decency and respect, whether someone recovering from a stroke and experiencing impaired auditory processing can actually perform the duties required of a U.S. Senator. I expect that many curious Pennsylvania voters will tune in on October 25, wondering what they might see.

The Monkees, Redacted

The Federal Bureau of Investigation has been in the news a lot lately. Many on the right think the FBI has recently become politicized–but the reality is that the agency has been involved in investigations of political matters for decades, ever since it was asked to look into loosely defined “subversives” back in the 1930s. Back in the J. Edgar Hoover days the FBI collected information on Martin Luther King, the civil rights movement, anti-war protests, and . . . the Monkees.

What a second–the Monkees? The zany, made-for-TV rock band that had a brief but memorable TV show, produced a series of number 1 albums, were a sensation among teenagers, and incidentally recorded some great rock music that still stands up? The FBI investigated those guys?

It did. According to the FBI’s “Vault” webpage–which, if you’re interested, allows you to search for FBI records on line–the agency has two records about the rock band: “a 1967 Los Angeles Field Office memorandum on anti-Vietnam war activities and a second document redacted entirely.” The 1967 field office memorandum was released to the public about ten years ago, and is very heavily redacted. (You can see the original report, in its redacted form, here.) The unredacted portion reports on a concert the Monkees gave in which photographs were broadcast on a screen behind the band that a redacted informant considered to be “left-wing intervention of a political nature”–which in reality reflected what was actually going on at the time, like racial rioting and protests against the war in Vietnam.

Now Mickey Dolenz, the last surviving member of the Monkees, is suing to try to get the FBI to release the full records about the band. The lawsuit seeks “any records the FBI created and/or possesses on the Monkees as well as its individual members.”

In the grand scheme of what is going on in the world, trying to determine what information the FBI collected about the Monkees is a small thing, but it also raises a big point about transparency and getting a fuller accounting of the FBI’s activities over the years. It’s hard to believe that the document from the Monkees’ FBI file that was released in 2011 merited the heavy redaction it received; what kinds of information could it possibly contain that would reasonably need to be kept secret, decades later? Now that another ten years have passed, there is even less cause for continuing secrecy. I’m hoping the lawsuit is successful and we get to see what the FBI considered so important and secretive. Perhaps the lawsuit, and the reaction to any documents that are released as a result of it, will cause a reassessment of the agency’s actions and, particularly, its continuing, overly aggressive redaction of documents that the public actually has a right to see.

“A Republic, If You Can Keep It”

In 1787, as the Constitutional Convention was deliberating, there was keen public interest in what form of national government the delegates would decide to recommend to the individual states. According to a journal kept by James McHenry, a delegate to the convention from Maryland, on September 18, 1787, Elizabeth Willing Powel of Philadelphia asked Benjamin Franklin whether the delegates would recommend a monarchy or a republic. According to Mr. McHenry, Franklin replied: “A republic, if you can keep it.”

Franklin’s famous response has a cautionary, but flexible, quality to it that makes it a perennial reference in American politics. Dr. Franklin’s quote was cited repeatedly, for example, during the Trump impeachment proceedings in December, 2019–so much so that some people created a drinking game requiring players to take a gulp whenever Franklin was quoted, again.

I thought of Franklin’s witty yet telling comment when I heard of President Biden’s decision to issue an executive order forgiving certain student loan debts for people earning less than $125,000. The President invokes the Higher Education Relief Opportunities for Students (HEROES) Act of 2003, a post-9/11 law that permits the Secretary of Education to waive or modify Federal student financial assistance program requirements to help students and their families or academic institutions affected by a war, other military operation, or national emergency. The Biden Administration says the COVID-19 pandemic is a “national emergency” that allows invocation of the HEROES Act to forgive the student loan debt. The precise price tag for President Biden’s executive order isn’t entirely clear. The White House says it will cost $24 billion per year over the next ten years, whereas a study by the Wharton School at the University of Pennsylvania concludes that the plan could conceivably cost as much as $1 trillion over the coming decade.

Franklin’s quote comes to mind because the central idea of a republic is that the people will act through their elected representatives: the two houses of Congress. That is why the Constitution gives Congress a sweeping array of powers and responsibilities. In this instance, it’s clear that, in passing the HEROES Act in 2003, Congress did not contemplate that it was authorizing the President, acting through the Secretary of Education, to broadly forgive hundreds of billions of dollars in student loan debt for thousands of borrowers in the wake of a global pandemic. Congress never held hearings or debated, for example, whether a $125,000 income cutoff is appropriate, or how much debt should be forgiven, or whether other requirements should be imposed in order for people to qualify for debt relief. In a true republic, all of those things would have happened, and the people would have had a chance to be heard, too, by reaching out to their representatives as the proposal worked its way through two houses of Congress, compromises were struck, and amendments were offered before the final bill reached the President’s desk.

I know people of good will who have argued both sides of the issue of whether broad student loan relief is a good idea as a matter of policy. I’m more concerned, in this instance, with how the decision was made. If you value the concept of a republic, it’s extraordinary to think that a President can commit the government to take on hundreds of billions of dollars in debt with the stroke of a pen by invoking an obscure provision of a law that has never been used for anything remotely resembling the President’s sweeping executive order.

In view of this development, would Dr. Franklin think we are keeping a republic?

“No Politics” Facebook Groups

If, like me, you are a fan of Dilbert and The Far Side comic strips, you can join a Facebook group in which fellow fans share vintage strips so you can get your daily laugh at the antics of the pointy-haired boss, Wally, Catbert, mad scientists, women in beehive hairdos, and cows. It’s great–until you notice that what is supposed to be a feed of enjoyable comic strips has also become a free forum for people to vent their political spleens, and those notices of new group postings that you are getting are taking you to purely political rants.

That’s what happened to the Dilbert Facebook group that I originally joined. Very quickly, the political postings overwhelmed the posts that actually had something to do with Dilbert. So I quit the group, reasoning that I get a sufficient diet of different political memes and viewpoints from the group of Facebook friends on my news feed, without needing to add whatever screeds might be posted by strangers who have joined what is supposed to be an innocent cartoon enjoyment forum. Fortunately, I was able to find a group formally titled “Dilbert (no politics)” to give me my Dilbert fix without the political overtones.

I get that, for many people, politics is all-consuming, at whatever point on the political spectrum they are on. Still, it seems weird to me that we need to form specific “no politics” Facebook groups to prevent intrusions into groups dedicated to comic strips, or sports, or cast-iron cooking, or needlepoint. You would think that people would realize that the groups aren’t formed for that purpose, and the audience isn’t really keen to have strident politics injected into their fun. Does anyone really think people might change their political views due to a diatribe posted in a Facebook group focused on some non-political topic? I’m guessing that most people react as I do and just leave the group, shaking their head at the notion that Facebook groups can become political battlegrounds and wondering at the fact that, these days, it seems harder and harder to get away from politics.

Redefining Death

Yahoo has published an interesting article about an ongoing debate that most of us are blissfully unaware of: how do you define, as a legal matter, who is dead? The debate is heated, and is occurring in the context of discussions about rewriting the Uniform Determination of Death Act (“UDDA”). UDDA, which has been around since 1981, is one of many uniform laws that were drafted by the Uniform Law Commission and submitted to the 50 states in an effort to achieve standardized approaches to common issues, like what constitutes a contract for the sale of goods. In most instances, the work of the Uniform Law Commission addresses uncontroversial topics where reaching consensus is not difficult.

Redefining death has turned out to be an exception.

Determining who is legally dead is one of those areas where advances in medicine have affected legal issues. For many centuries, doctors determined death by listening for a heartbeat or taking a pulse and pushing a mirror under the patient’s nose to see whether breathing was occurring. Medical technology developed over recent decades has allowed machines to substitute for the heart and lungs, however, and other inventions have allowed us to examine human brain activity, which means the focus has shifted to the brain. If there is no brain activity, but a human being continues to breathe and other bodily functions continue with the help of machines, is that person alive or dead? How do we know if the cessation of brain activity is permanent? Should brain activity be controlling, or should the activities of other anatomical parts that affect body activity, like glands and the hippocampus, be considered? And another relatively recent medical advance–organ transplants–also is playing a role in the redefinition process. Essential organs can only be removed from a patient who is dead, so having a clear understanding of what that means is crucial to the organ transplant system.

The original UDDA was adopted by some states, but not others, and the rules defining death in different countries are even more muddled. The Uniform Law Commission is working to rewrite UDDA, and thereby redefine what legally constitutes death, against the backdrop of the medical issues and developments as well as some high-profile cases that have raised issues about when the end of life occurs. It’s a topic that touches upon medicine, law, philosophy, ethics, and religion–and, as with everything else in our modern era, politics. When UDDA was first proposed and adopted by states in the 1980s, it was not viewed as a controversial topic. Does anyone seriously believe that a rewrite of the statute would be viewed as apolitical in 2023, when it is expected to be rolled out to each of the 50 states, Puerto Rico, and Washington, D.C. for consideration?

You’d like to think that we can reach agreement on basic principles, like when someone is legally dead. The rewrite of UDDA will test that proposition.

The New Airline Announcement

In my recent travels, I’ve noticed that pilots and flight attendants have modified their pre-flight announcements. We no longer hear about how it is mandatory to wear a face mask that covers your nose and chin and how “neck gaiters” don’t cut it. Instead, the new announcement goes something like this:

“Due to a recent FAA announcement, face coverings are no longer mandatory on domestic flights. Whether passengers decide to wear a mask is a matter of personal choice. We ask that you respect the choices made by other passengers.”

In short, it’s pretty clear that the airlines think the skies aren’t that friendly anymore, and that they need to lecture us on how to behave lest arguments and fisticuffs break out between masked and non-masked passengers.

The fact that the airlines see a need to make that kind of personal behavior statement is weird and sad, but you can’t blame them: there have been multiple incidents of violent behavior by airline passengers in recent months. For what it’s worth, though, I’m not seeing any inclination by fellow passengers to mix it up over masks. Instead, there seems to be a kind of COVID exhaustion at work. Everyone on both sides seems to want to move on, rather than engaging on mask issues.

Let’s hope that this traditional American “live and let live” ‘tude continues to prevail and even spreads to encompass non-COVID issues, too. That would be a refreshing change.

Ohio — The Library State

The U.S. Senate and Ohio gubernatorial races got most of the attention in Tuesday’s Ohio primary election. But the election also featured a series of levies, bond issues, and other decisions to be made by Ohio voters. And when you drill down into the results, you find something striking: libraries kicked butt.

In fact, library issues went a perfect 6-0 in the election, and all of them passed resoundingly — garnering, on average, approval votes from 71 percent of voters. In contrast, many school levies and bond issues went down to defeat.

Why do Ohioans vote overwhelmingly for libraries? A representative of the Ohio Library Council says its because Ohioans like the services they offer, and she speculates that the free COVID test kits offered at Ohio libraries during the pandemic might have played a role. I don’t know about the test kits, but I do think that the pandemic helped to drive home how important it is to have a place where you can find books to read, videos to watch, and CDs to listen to while you are social distancing. More generally, I think people like the community element of libraries. In many parts of Ohio, libraries are a source of local pride, and also one of the connections that hold communities together and allow neighbors to see each other. And library issues typically aren’t breaking the bank in terms of what they are asking.

I’m a big library supporter, and we are big-time library users. I think libraries are an important part of the fabric of this country, and I’m glad to see that my fellow Ohioans agree with that sentiment.

Changing Party, Changing State

Yesterday Ohio held its primary election. There was a fierce contest on the Republican ballot for the nomination to replace retiring Senator Rob Portman, a moderate. Most of the candidates who were vying for the nomination, in contrast, were much more on the conservative side of the ledger, seemingly trying to “out-Trump” former President Trump. J.D. Vance, the author of Hillbilly Elegy who was endorsed by Trump, won the primary with just over 30 percent of the vote. Vance will now face Democrat Tim Ryan in November.

The Republican primary for Senate leaves me thinking about just how much the Republican Party in Ohio has changed in my lifetime. Shortly after we graduated from college, we moved to Washington, D.C., where I got a job as a press secretary and legislative aide to Rep. Chalmers P. Wylie, shown above, a Republican who represented part of the Columbus metropolitan area and some of the surrounding rural counties. Mr. Wylie had fought valiantly in World War II in the European theater and been decorated for bravery; after the war he earned his law degree and then worked for years in various city and state public service jobs before being elected to Congress in 1967 and ultimately serving 13 two-year terms.

Mr. Wylie was a quiet, friendly, unassuming person who was the quintessential moderate Republican, very much like Senator Portman. Mr. Wylie didn’t seek the limelight, didn’t make bombastic speeches on the House floor, and had many friends on the Democratic side of the aisle. He was more interested in trying to get things done and serving his constituents than making headlines. To him, “compromise” was not a dirty word, but rather than essence of the political process. His philosophy, expressed to me in many ways when we worked late into the night answering constituent mail, was that you never burned your bridges and that the people you represented, and the country, were always better served by your engaging with the other side, rather than berating them. It’s hard to imagine him in politics now, where his gentle approach would stick out like a sore thumb.

At the time I worked for him, though, Mr. Wylie wasn’t alone. There were other moderate Republicans in Congress from Ohio, and Ohio had a reputation for producing moderate politicians in both parties. But the party has changed and the state has changed to the point where Mr. Wylie, were he with us today, likely wouldn’t recognize it. The changes began even before President Trump decided to run for President, with the internet, communications technology, social media, enormous infusions of cash, and much more frequent primary challenges–all of which have served to push politicians away from the center and move them toward the edges, where they are less likely to be questioned by the far wings of their parties. That is true of both Republicans and Democrats, and it is highly notable in Ohio, where moderate Republicans and moderate Democrats have become a vanishing breed.

J.D. Vance once spoke out against President Trump, but when Vance decided to run for Senate he (and most of the other Republicans seeking the nomination) positioned themselves for Trump’s endorsement, figuring that the former President carried Ohio twice, with surprising margins. With the Republican nomination now secured, will Vance move back toward the center? I think the center still exists in Ohio, but no one really seems to be trying to find it.

A Supremely Problematic Leak

America was rocked today by the news of the leaked Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, the case addressing the continuing vitality of Roe v. Wade. The leaked document was a draft of an opinion written by Justice Alito that would–if ultimately issued–reverse Roe as wrongly decided, and leave abortion rights to be decided by state legislatures.

The views on both sides of the abortion debate are so heated it’s impossible to fully set them aside to focus on the fact of the leak itself. But the leak deserves attention in its own right, regardless of which side of the Roe debate you are on. Although there have been leaks at the Supreme Court, those instances are rarer than hen’s teeth. The Court is used to conducting its deliberations and opinion-writing in complete secrecy, with no indication of its decisions outside of the tiny universe of Justices and their clerks until the Court’s opinion on a matter is publicly announced to the public. There is good reason for that rule of strict confidentiality: the Supreme Court routinely handles cases of enormous importance, and any kinds of leaks could have far-reaching political, economic, and social consequences–just as the leak of the Dobbs opinion did.

The idea that someone leaked a draft Supreme Court opinion under these circumstances is horrifying to those of us in the law profession. A tweet from SCOTUSblog, a non-partisan website that carefully covers every case before the Supreme Court, aptly captured the reaction of many: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.” Chief Justice Roberts echoed that sentiment in the statement he issued today, which noted: “Court employees have an exemplary and important tradition of respecting the confidentiality of the judicial process and upholding the trust of the Court. This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here.”

The Chief Justice has ordered the Marshal of the Supreme Court investigate the source of the leak, which is absolutely the right thing to do. We don’t know yet who leaked the opinion, but it’s clear that their intent was to manipulate the decision of the Dobbs case, the votes of Justices, the terms of the Court opinions, and the political and public reaction to a potential reversal of Roe. The Chief Justice vows that the work of the Court “will not be affected in any way” by the leak, and states: “To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” But what’s troubling here is that someone–a clerk, an employee, or even a Justice on the Court–attempted to exert extrajudicial influence on the Court in the first place. That prospect is extremely unsettling, because if someone thought it was appropriate to leak the draft of the Dobbs opinion, what’s to prevent leaks in the future of opinions in cases involving redistricting, or presidential powers, or the death penalty, or any of the other hot-button issues that the Court regularly addresses?

I would make one final point: although the Court typically keeps virtually everything about its operations confidential, I think it is important for the Court to disclose any findings the Marshal makes about who did the leaking, and why. The role of the Supreme Court is essential to our constitutional system, and leaks erode the trust that is one of the Court’s most powerful attributes. The public deserves to know who–as the Chief put it–tried to “undermine the integrity” of the Court’s operations.

To Appeal, Or Not To Appeal

The Biden Administration is weighing a tough decision: whether to appeal the federal court decision striking down the mask mandate the federal government imposed on air and train travelers during the COVID pandemic. It’s a very tough decision on both legal and political grounds.

According to news reports, the Justice Department will appeal the court ruling if the CDC decides that the mask mandate is still necessary to protect public health. That’s a bit strange, in a way, because the CDC decided only last week, just before the court ruling, that the mask mandate should be extended for an additional 15 days, until May 3, to allow the CDC to assess the impact of yet another COVID subvariant. It seems as though the DOJ is punting the decision to the CDC and, perhaps, hoping that the CDC will change course, decide that public health now doesn’t require an extension, and allow the DOJ to cite that determination in electing not to appeal. In the meantime, the DOJ won’t pursue an immediate stay of the federal court’s decision, which means that the mask mandate won’t be enforced unless and until an appeal occurs and the appellate court rules to the contrary.

The legal and political stakes in the decision on a potential appeal are high. Legally, the issue is whether the federal government wants to take the risk that a higher court will agree with the district court judge and establish a firmer precedent that the CDC doesn’t have the kind of sweeping power it has exercised over the past two years. Some people describe the district court decision as a poorly reasoned “legal disaster,” while others contend it is a reasonable interpretation of statutory text that simply was not intended to authorize an administrative agency to unilaterally impose nationwide mask mandates. Regardless of how you come out on that issue, for now the decision is simply the opinion of a single district court judge. If an appeal occurs, the federal government runs the risk of an adverse decision by a federal court of appeals and, potentially, the Supreme Court–raising the possibility that, if the nation’s highest court agrees with the federal district court judge in this case, the CDC’s ability to issue future public health mandates could be eliminated, unless and until Congress decides to amend the statute to clarify what is permitted.

Politically, the stakes are equally high because there are strong feelings on both sides of the masking issue. News reports in the wake of the federal court decision reported pro and con comments from travelers about the decision, while videos of cheering passengers removing their masks mid-flight appeared on social media. Whatever decision the federal government makes is likely to upset one faction or the other, leaving the Biden Administration at risk of being labeled irresponsible in its stewardship of public health, or a lily-livered adherent to pointless governmental paternalism. No politician would be happy about either of those outcomes. On the other hand, if the CDC suddenly decides that, under the current circumstances, the mask mandate is no longer needed to protect public health, it has provided the Biden Administration with some political cover–and those who want to wear masks will of course be permitted to do so.

It would be interesting to know whether, behind the scenes, the Biden Administration is encouraging the CDC to move in one direction or another. It’s hard for politicians to restrain themselves from politicking. We’ll never know for sure, because if that information came out it would undercut the depiction of the CDC as the neutral, objective, apolitical entity that is focused solely on scientific and medical evidence and the public health.

Celebrating “Trolling”

If, like me, you’ve got the ESPN app on your phone, you’ve undoubtedly seen some kind of notice lauding such and such team or player for crushingly “trolling” another with some devastating putdown that bursts their bubble. Of course, it’s not just sports stars and their teams that engage in trolling–you see it in politics and other areas as well. And there, too, “trolling” is often applauded.

“Trolling” is an apt term for this practice, conjuring as it does the creature living and lurking in the shadowy, dark, dank areas under the bridge–scary, creepy, and disconnected from the rest of society, but always ready to spring up when you least expect it. The derivation of “trolling” in its modern sense isn’t a reference to Norse mythology, however, but rather to a fishing technique: “trolling” occurs when the angler puts a baited line in the water, hoping that a fish will bite. That’s what internet or social media trollers do. They say something outrageous and provocative, and hope that someone will engage and they can display all of their powers of insult humor, ironic commentary, and smart-alecky know-it-allism.

“Trolling” isn’t kind or polite behavior. It’s snotty and snarky and over-simplifying. You wouldn’t countenance it from your kids at home, and you wouldn’t hang around friends who engaged in it all the time. So why do ESPN, political website, and other internet and social media outlets celebrate trolling comments, and encourage those people under the bridge to emerge? How are we ever to de-coarsen our society if we’re constantly patting people on the back for a “perfect” or “hilarious” trolling effort?

It’s weird to think we’ve reached the point where some people aspire to be great trolls. They’re not exactly aiming high.

No Enemy But Time

Yesterday the United States Senate voted unanimously to make Daylight Savings Time permanent. If you wondered whether our fractured political bodies could ever agree on anything significant, there’s your answer: in the Senate, at least, Democrats and Republicans alike share a common position on time itself.

Of course, “Daylight Savings Time” is an appealing, but ultimately misleading, name. “Springing ahead” doesn’t actually “save” any daylight, it just shifts it from the morning to the afternoon. There will still be the same amount of sunlight on the shortest days of the year; the only issue is when you want to to experience it. The Senate has cast its lot with the afternooner lobby, which has been making constant inroads on our “Standard time” period over the past few decades, leaving it shorter and shorter. If the House follows suit, and President Biden signs the legislation, the change to permanent DST will literally leave “morning people” in the dark for an hour longer during the winter months.

What would it mean, practically? Well, we wouldn’t have to fiddle with changing our clocks anymore. But if you live in Columbus, or anywhere else that is on the western edge of a time zone, you will experience exceptionally dark mornings during December and January. A Google search reveals that the sun rose in Columbus at 7:50 a.m., Eastern Standard Time, on December 21, 2021, the shortest day of the year–that is, the day with the least amount of sunlight. The shift to permanent DST would mean that the sunrise wouldn’t occur until 8:50 a.m. If you’re someone who’s got to clean snow or ice off your car to get to work, you’ll be doing it in the pre-dawn blackness, and it will feel colder.

The “daylight savings” versus “standard” time debate used to be a contentious one, with farmers, people working first shifts, other early risers, and people worried about kids going to school in the dark lining up on the standard time side. But the political winds have shifted, and we’ve become more of an end of day society that simply isn’t awake to enjoy those first rays of sunshine in the early morning Standard time hours. The fact that the Senate unanimously approved the change tells you all you need to know.

Bringing Different Forms Of Diversity

Much has been written about how Judge Ketanji Brown Jackson, if confirmed by the Senate, would become the first Black woman to serve on the U.S. Supreme Court. Less has been said about the other diversity elements that Judge Jackson would bring to the Court–diversity elements that I think also are important.

Judge Jackson would be the first former federal public defender to become a Supreme Court Justice, and she also served for a number of years as a federal district court judge. These are significant points of experiential diversity. Public defenders are a key part of the criminal justice system. Judge Jackson’s work in that role is bound to inform her thoughts on criminal justice issues that may come before the Court, such as prosecutorial misconduct, setting bail, and sentencing. Similarly, Judge Jackson’s years spent supervising a district court docket–conducting jury trials and bench trials, deciding motions in civil and criminal cases, resolving evidentiary disputes, and making her own sentencing decisions, among other activities–will give her a practical perspective on those issues that will be helpful to the Court and that are not possessed by those Justices whose pre-Court resumes don’t include those kinds of experiences.

I’m a big proponent of diversity in all forms, including the diversity of viewpoint that can be shaped by direct, hands-on experience and observation. Supreme Court decisions that are informed by a Justice’s practical experience are bound to result in the articulation of more knowledgeable, workable rules that are meant to apply to the everyday workings of the American judicial system. If the Supreme Court were to consider, for example, the issue of how district courts must address a particular issue, I would expect Judge Jackson’s boots-on-the-ground views on that issue would be persuasive to other members of the Court. Even if her opinion on the issue didn’t command a majority, the discourse will inevitably help to shape a better, sharper, and more focused approach.

I’ll be interested in seeing whether the confirmation hearings on Judge Jackson will address these additional points of diversity, and in the future I’ll continue to hope that Presidents consider other yet other forms of diversity in making Supreme Court nominations. For example, it would be nice to see more nominees from non-Ivy League law schools, and more nominees who did not serve as Supreme Court clerks. (Judge Jackson is a Harvard Law graduate and clerked for Justice Breyer, whose retirement allowed her nomination.) Those of us who went to other law schools and didn’t obtain Supreme Court clerkships would like to think we’ve still got a shot.

Casual Disobedience

I spent a lot of time in downtown Columbus today. Columbus is one of those cities where a mask mandate imposed by the Mayor has been in effect for months–since September 2021 and the early days of the Delta variant, in fact. (Who out there even remembers the dreaded days of the Delta variant? It seems like ancient history, doesn’t it?)

But today, the mask mandate was largely ignored. Many of the people I saw in downtown buildings weren’t masked up. And what was striking was the casualness of it all. People weren’t loud and proud about their de-masking or, so far as I could tell, consciously trying to make a political statement by walking inside buildings with a mask-free face. Instead, it was an utterly unceremonious thing–as if the maskless just decided that they had had enough, and weren’t going to go along with the mask requirements any more.

People in Columbus have been talking about when the Mayor is going to lift the mandate and allow residents to enter buildings without masks–which has been the rule in most of the surrounding suburbs and in many other Ohio cities. If I were the Mayor, and had been in downtown Columbus today, I would be thinking about lifting the edict sooner rather than later. It doesn’t do any good to issue directives if they are going to be casually ignored, and it seems pretty clear that that is what is happening here. Trying to keep the mask mandate in place when people are routinely ignoring it is fighting a losing battle–and what politician wants to do that?

In A State Of Constant Stimulation

As we approach the two-year anniversary of the initial governmental shutdown orders of 2020–and are still dealing with the various variants of COVID-19–some members of Congress are back to considering whether more “stimulus” efforts should be undertaken, and a two-year-old Change.org petition calling on the federal government to send out $2,000 monthly “stimulus” checks to all Americans has passed the 3 million signature mark.

The initiators of the petition contend that, even after two years of various “stimulus” payments, the $2,000 monthly checks are needed because of uncertainty about what could happen if the government orders a new round of closures, if schools require remote learning, or if other disruptive events occur. The article linked above quotes the initiators of the petition as saying that signers are trying to send a message: “‘We just need certainty. We need to have something we can plan on month after month.’”

In short, for some people what began as an effort to help individuals and businesses while the country dealt with the economic shock of the initial, purportedly short-term “flatten the curve” shutdowns, through “stimulus” checks, enhanced unemployment benefits, and readily available business loans, has morphed into a quest for guaranteed, federally funded monthly income that would apparently extend into the indefinite future. When you reach that point, it can’t reasonably be called a “stimulus” payment anymore–unless you accept that our economy now is in need to constant “stimulation,” like a Frankenstein’s monster that is forever being zapped with high-voltage electricity in order to keep going. And such a budget-busting monthly payment obviously would have significant inflationary effects and other long-term consequences for the economy generally and the labor market specifically.

An interesting point is that the primary stated reason for the requested monthly checks is the impact of governmental decisions, like closure orders and requirements for virtual schooling from home, on individuals and families. Perhaps the real lesson from the petition isn’t that some people would like to continue to get governmental checks–that’s really no surprise–it is that governmental entities need to think twice about consequences before issuing new sweeping and disruptive orders after two years of COVID edicts.