And now, a public service announcement on behalf of America’s sanity

It is the midst of winter here in the Northern Hemisphere…right now forecasters are forecasting their asses off about a major ice storm aimed at a hunk of the South.  The days are still comparatively short, and with the cold weather that has accompanied a lot of rain in our part of the world (is the drought over yet?) I am not alone in looking for more indoor distractions until golf weather returns.

But, please God, not this: American journalism outlets and associated information-providing avenues, would ya stand down on the perpetualization of the campaign for president of the United States!  Stop with the assumption that there is nothing more important to talk about, nothing so critical for me to know about, than who is favored and disfavored by people responding to public opinion polls.  Even if those people are telling the pollsters the truth, who cares right now?!  So much can happen in the months and months before anyone casts a meaningful ballot that these results are pointless; they only serve to keep funds flowing to the political-industrial complex.

It is too early.  It is soooo tiresome.  Even the primaries and caucuses that happen more than six months before the general election aren’t helpful in learning about candidates.  The whole thing has become a proxy for the on-going national food fight on “cultural issues” (that really aren’t even about culture) and not about administering government operations or even on providing leadership on issues.

And, at this point a year away from the first voters voting in the next national election, what you are telling us has proved to be, so often, so very wrong.  In Politico, Jeff Greenfield reminds us that in most recent years the “favorites” at this point do not win the contest.  You remember Howard Dean trouncing John Kerry in 2004, right?  And 2008, when Rudy Giuliani blew away John McCain while Hillary Clinton obliterated that senator from Illinois with the big ears?

The point here is not to argue for a vow of journalistic silence in the long slog leading up to the actual contests; it’s to put that part of the process into context, along with a serious dose of humility. Yes, Trump looks weakened, but are we really ready to anoint Ron DeSantis the nominee before he proves himself on the big stage? Yes, Biden is an octogenarian whose approval rating has been underwater since August 2021, but is anyone in his party really about to challenge his hold on the White House?

If you need something civic to worry about, worry about the government debt ceiling and the on-going budget deficits; give some thought to how our country can help our allies stifle threats from Russia and China; consider the real causes for and possible humane solutions to the humanitarian crisis at our southern border and the budget crisis it’s created for federal and state governments.  You could engage in the speculation about which team will win the Super Bowl or who will be selected as the next head coach of your favorite NFL team.  You could even talk to your friends about who will win The Bachelor, but please promise to do that verrry quietly so the rest of us can’t hear you.  But please leave the next race for president alone for now.

And if you need something to keep you warm on these cold winter days and nights, curl up with The Columbia Journalism’s Review of how American journalism handled coverage of Donald Trump.  There’s something here to warm the hearts of media-haters everywhere.

The Constitution for grown-ups

As we prepare to pay scant attention to another confirmation hearing for a nominee to the Supreme Court of the United States, consider:

When David Souter was nominated to the court by President Bush (the first one…the good one) in 1990 he was little known in political circles outside of New Hampshire, but he had been a judge in trial and appellate courts in that state.  His nomination was opposed by NOW, the NAACP, and senators Ted Kennedy and John Kerry (among others) because they feared he was a right-wing ideologue.  By the time he retired in 2009—actually, long before that—conservatives blasted him for being a liberal, which many conservatives define as “one who does not believe as I do.”

David Souter’s judicial philosophy didn’t change in those years but the way we look at politics did; he left the court the same principled, thoughtful man who joined it a generation before.  So it’s worth considering what he had to say to Harvard graduates last month about the law and the role of judges in the American legal system.

The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches.  These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Slate’s Dahlia Lithwick notes that some cheered what they saw as Souter’s disagreement with the judicial theories of some of his former court colleagues, but she finds what I think is a more valuable avenue to explore:

He wasn’t just using the opportunity to debunk what he called the "fair-reading model" of constitutional interpretation (which is quite different, although related, to the originalist approach).  And he wasn’t just using the speech to argue for evolving moral standards in judging, although he did that, too.  It seems to me that Souter’s decision to avoid all the hot-button words signals a much bigger project: He wants Americans to consider—in advance of yet another tedious confirmation hearing—the possibility that judging is really, really hard and only special people should get to do it.

Souter makes the point that the Constitution’s words are not always plain and clear, and are not without internal contradiction, and so the requirements for being a judge (particularly an appellate judge, a Supreme Court justice) go beyond high scores in reading comprehension.  He’s telling us, as Lithwick puts it, that we must recognize “ in Justice Oliver Wendell Holmes’ formulation, that ‘certainty generally is illusion and repose is not our destiny.’  He is telling us to stop dreaming of oracular judges with perfect answers to simple constitutional questions. He is telling us, in other words, to grow up.”

We shall see what Elena Kagan chooses to share about her philosophy of judging and the law.  Doug Kendall and Jim Ryan (no relation) hope that Kagan treats us as grown ups, and

…would be doing the entire nation as well as the Constitution itself a service if she would use the confirmation process to express and explain her commitment to follow the Constitution—all of it.  If Kagan does talk about the text and history of the Constitution, as well as the role of the court, it could go a long way toward recalibrating the current national debate on the judiciary and the Constitution.

They make a point on this issue that many overlook: it’s not just the original Constitution that justices must consider:

The amendments passed since the founding era have been glossed over a lot lately, at the Tea Parties, in the states, and even at the Supreme Court, where the conservative "originalists" seem to view what was originally drafted by the framing generation as better, and more legitimate law, than the changes made since.  This view is absurd…

Recognizing that both sides have been creative in their interpretation of the Constitution over the years, Kendall and Ryan urge Kagan (and everyone left of the political right) not to forego a fight with the right over fear of being branded hypocritical, but to defend the Constitution:

To be sure, the Constitution, properly interpreted, will not provide support for all liberal causes and nothing but liberal causes.  But it doesn’t provide support solely for right-wing fantasies, either, and Obama’s nominees to the court should make that clear.  The peddling of a selectively edited Constitution as patriotic and principled should be shown for what it is: a disgrace to our real Constitution.