Lee v. Ashers Baking Company, A Victory Against Compelled Speech

Asher Bakery Belfast gay marriage cake compelled speech

Today saw a victory against compelled speech and authoritarian government, but fewer and fewer voices on the Left are in the mood to celebrate

Today the Supreme Court of the United Kingdom handed down a decision in Lee v Ashers Baking Company Ltd, the UK’s equivalent of the Masterpiece Cakeshop case in the United States (which the UK court actually cited in its ruling).

Both cases came about when plaintiffs claimed discrimination based on sexual orientation after trying to place an order for wedding cakes bearing messages supportive of gay marriage at bakeries owned and operated by traditional conservative Christians, who then refused the orders on the grounds that to produce the cakes bearing the specific messages would violate their deeply held religious beliefs.

From the BBC:

The UK’s highest court ruled that Ashers bakery’s refusal to make a cake with a slogan supporting same-sex marriage was not discriminatory.

The five justices on the Supreme Court were unanimous in their judgement.

[…] The customer, gay rights activist Gareth Lee, sued the company for discrimination on the grounds of sexual orientation and political beliefs.

But the bakery has always insisted its objection was to the message on the cake, not the customer.

I have long taken the view put forward many years ago by Andrew Sullivan, that gay marriage should be accepted on the grounds that broadening an institution which promotes stability, permanence, mutual responsibility and (consequently) social capital can only be a good thing, especially at a time when social atomization and selfish, destructive cultural hedonism are doing so much to weaken vital bonds at the community and national level.

I would never advocate (nor tolerate) religious institutions being forced to conduct gay marriage ceremonies against their will, but rolling out the basic template of marriage and making it more widely accessible – especially to one of the only demographics which currently shows any enthusiasm for the institution! – seems perfectly sensible to me.

But even more abhorrent than the idea that the government might compel religious organizations to conduct ceremonies which violated their codes and moral systems is the  prospect of government compelling the speech of ordinary people, making anybody who wishes to participate in the public square affirm certain social dogmas on pain of civil or criminal liability. We have already seen Canada start to go down this road with Canadian Bill C-16, a statutory amendment which adds gender identity and gender expression to classes of individuals protected under Canadian human rights law, and moves perilously close to criminalizing the “misgendering” of people. Thus it is not inconceivable that someone could be held criminally liable in Canada were they to refuse to conform their speech to proclaim that trans women are women and trans men are men.

Compelled speech is the very last thing a healthy liberal democracy should be striving to enact. Thus it is great to see at least one human rights and civil liberties group – one which has not yet fully prostrated itself before the Cult of Social Justice and Identity Politics – celebrate the Ashers Baking Company decision.

From the Peter Tatchell Foundation:

“This verdict is a victory for freedom of expression. As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans,” said human rights campaigner Peter Tatchell, Director of the Peter Tatchell Foundation.

“Businesses can now lawfully refuse a customer’s request to emblazon a political message if they have a conscientious objection to it. This includes the right to refuse messages that are sexist, xenophobic or anti-gay, which is a good thing.

“Although I profoundly disagree with Ashers opposition to marriage equality, in a free society neither they nor anyone else should be forced to facilitate a political idea that they oppose.

“The ruling does not permit anyone to discriminate against LGBT people. Such discrimination rightly remains unlawful.

“Ashers did not discriminate against the customer, Gareth Lee, because he was gay. They objected to the message he wanted on the cake: Support gay marriage.’

It is sad that statements like this now have to be cheered and encouraged rather than taken for granted by civil liberties defenders and free speech advocates, but such are the authoritarian times in which we live – trapped in a pincer movement between what Maajid Nawaz calls the “Control Left” on one side, and reactionary, protectionist nationalists on the other.

Proving that he is one of the few prominent voices on the British Left who remains capable of thinking through the consequences of implementing illiberal leftist identity politics dogma heedless of the ramifications, Tatchell continues:

If the original judgement against Ashers had been upheld it would have meant that a Muslim printer could be obliged to publish cartoons of Mohammed and a Jewish printer could be forced to publish a book that propagates Holocaust denial. It could have also encouraged far right extremists to demand that bakers and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions.

Of course it wouldn’t be; we know that the administrators of this illiberal code – including establishment figures as powerful as the former head of the Crown Prosecution Service – would implement any such statutes or case law highly selectively, punishing only the disfavored “white, Christian male” group while refraining from holding other groups to the same draconian standard. But Tatchell is quite right that the argument for compelled speech, taken not even so far as to its logical conclusion but merely a few steps down the road, would swiftly end up censoring and controlling us all.

The real concern is that old-school campaigners like Peter Tatchell are a dying breed. In fact, they are being hunted to extinction by a new generation of social justice warrior activists whose petty accomplishments are nothing compared to someone like Tatchell (who, like him or not, has labored for years and put his body in harms way more than once in advance of his ideals) but who deludedly think they morally outrank him because they are willing to go further in their rhetorical, legal and constitutional attacks on dissenters.

This is a time when conservatives – indeed, anyone not of an ultra-progressive persuasion – need to pick their battles very carefully. Social conservatives may disagree vehemently with the social views of someone like Peter Tatchell, but in this authoritarian age it is not he who seeks to impose his views on others. Indeed, given the opportunity, some social conservatives would be more likely to impose their own views on progressive dissenters than Tatchell would do to them – which should give serious pause for reflection.

At this time the threat to fundamental rights and civil liberties, when the identity politics Left is hell-bent on compelling the speech of private citizens, forcing them to say words or endorse ideas in which they do not believe, old political divisions must be put aside in order to withstand the creeping incursions of authoritarianism into society. There will be time enough to relitigate social issues once we have jointly confronted and dispensed with the band of zealots who would actually put us in prison for thinking the wrong things.

In these fractious times, the sane(r) Left urgently needs shoring up. Because if things continue on their current trajectory, Peter Tatchell’s ideological opponents on the right will miss him when he is gone.

 

Ashers Bakery Belfast

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Lessons On Populism, From Bono

Fareed Zakaria - U2 Bono - populism Europe - Kiev

 

How to solve the “scourge” of European populism? CNN’s Fareed Zakaria makes a pilgrimage to Kiev, to consult with the geopolitical oracle known as Bono

Every now and then you read an article so astonishingly un-self aware, so counterproductive, so open to attack and ridicule on multiple fronts that it is difficult to know where to begin. The latest writer to evoke this strong reaction is Fareed Zakaria, CNN’s in-house intellectual and self-touted expert on international issues and foreign affairs.

The headline of Zakaria’s latest asinine column in the Washington Post? “I wanted to understand Europe’s populism. So I talked to Bono.”

Zakaria has apparently turned his formidable mind towards the rising backlash against years of technocratic supranational rule which favored delivering a stream of perks and opportunities to urban cognitive elites while leaving the rest of their citizens to face the vagaries of globalization, automation, outsourcing and supranationalism unsupervised, unrepresented and unprotected. Of course, Zakaria does not view the problem in these terms – he would doubtless describe it as a mass turning away from reason and rationality, and a refusal on the part of ordinary people to gratefully follow the course carefully laid out for them by their intellectual and moral betters.

And so when faced with a rise in “populism” around the world, Zakaria doesn’t engage in any personal introspection as to how he and his circle might have brought us to this moment. He certainly doesn’t reach out to any of the discredited technocrats and ask searching questions of leaders like Hillary Clinton, David Cameron or Tony Blair. No; Fareed Zakaria hopped on a plane to Kiev, where he hunkered down with U2 singer and Woman of the Year Bono, who – as we all know – is the premier global expert on the subject of populism, its causes and its cures.

Again, this is one of those articles where one can scarcely make it to the end of each paragraph without wanting to fly to Fareed Zakaria’s New York home for a personal one-on-one summit with the guy. I read the thing and just sat staring at the screen for a good five minutes, incredulous that anybody could show such supreme ignorance – and worse, lack of curiosity – about the other perspectives he pretends on his television show to care about.

From the top:

When confronting a challenging problem, it’s sometimes useful to listen to someone who looks at it from an entirely different angle. That’s why I found it fascinating to talk about the rise of populism and nativism with Bono last weekend at a summit in Kiev.

Naturally. I hop on a plane to see Bono at least once a month, whenever I am faced with a personal or geopolitical quandary, and I am sure that you do the same. The man is just a font of wisdom. And “different angle”? Bono believes in and champions exactly the same supranational, technocratic and remote system as Zakaria. The man waves an EU flag around on stage in his concerts, for heaven’s sake. Yet Zakaria has the nerve to portray traveling thousands of miles to hear his own opinions reflected back at him from an aging rock-star as a fearless search for alternative points of view.

The Irish singer-activist-philanthropist sees the same forces that we all do, particularly in Europe, but he zeroes in on something intangible yet essential. The only way to counter the dark, pessimistic vision being peddled by nationalists and extremists, Bono says, is to have an uplifting, positive vision. Homing in on the trouble in his part of the world, he told me, “Europe needs to go from being seen as a bore, a bureaucracy, a technical project, to being what it is: a grand, inspiring idea.”

And immediately the bias betrays itself. At a time when the European Union’s failures and the hubris of EU leaders are dooming entire generations of youth to chronic unemployment, when their incompetence at defending the union’s frontiers has led to an inward wave of illegal migration which no voters sanctioned and at a time when the entire European project stands either discredited or seriously questioned in a whole swathe of member states, Fareed Zakaria’s first thought isn’t whether some of the EU’s critics might have a point worth hearing. His first thought is how European elites can best double down on their vision and make their recalcitrant citizens realize the error of their ways and drop their inconvenient resistance to further political integration.

More:

To that end, Bono’s band, U2, has been choosing a moment during its concerts to unfurl — wait for it — the flag of the European Union.

How dreadfully original. He should do a duet with EU supergirl.

“Europe is a thought that needs to become a feeling,” Bono wrote in a recent op-ed in the German newspaper Frankfurter Allgemeine. He is trying to give that feeling meaning. To him, Europe is about the ability of countries that were once warring to live in peace, for people of many different lands and languages to come together. “That idea of Europe deserves songs written about it, and big bright blue flags to be waved about,” he wrote.

This same tedious and over-simplistic point has been made by a thousand teenage left-wingers with the EU flag painted on their faces, not to mention legions of C-list cable news talking heads, yet when Bono says the same thing it becomes profound and original insight worthy of inclusion in a Washington Post feature article. Remarkable.

But here’s the bit where Zakaria’s powers of analysis really desert him:

Bono admits that Europe is a “hard sell” today. The continent is ablaze with populism. These forces have taken control in Hungary, Poland and Italy and are steadily gaining ground elsewhere, including Germany and Sweden. It seems that everywhere the fuel is the same: hostility toward strangers, foreigners, anyone who is different.

There is absolutely zero attempt here to distinguish between actual xenophobia and racism on the one hand, and legitimate concerns about a lack of democratic control over immigration or enforcement of the rule of law against illegal immigrants on the other. But of course in Zakaria’s mind there is no distinction to make. Merely objecting to massive expansions of inward immigration ushered in by governments without seeking popular consent is every bit as racist and worthy of condemnation as donning a white robe and lighting crosses on fire. Simply asking questions about the impact of high levels of migration on societal cohesiveness and public service provision is taken to be the sufficient mens rea to establish guilt.

And so Fareed Zakaria, ventriloquizing Bono the Philosopher King, doesn’t seek to dig into a hugely complex issue featuring a cast of thousands of actors and hundreds of policies and sub-policies. He doesn’t attempt to separate actual racism, prejudice and discrimination against people based on their national or ethnic background, from legitimate concerns about how the EU’s leaders and national leaders have stubbornly implemented their own view of the open, multicultural society without consulting let alone seeking the approval of those they nominally serve. They are all lumped together as “hostility toward strangers, foreigners, anyone who is different”, a blanket condemnation which allows people like Fareed Zakaria and the political masters for whom he covers to press ahead with their existing policies without feeling the need to justify themselves or win public approval. After all, one doesn’t need to make accommodation with racists.

Zakaria then goes on to paraphrase Francis Fukuyama:

The founders of the E.U., he argues, spent too much time building the technical aspects of the project — laws, rules, tariffs. They neglected to nurture an actual European identity, something people could believe in not for rational reasons but for emotional and idealistic ones.

This is one of only two perceptive points made in the entire article, and it comes courtesy of a third party. This is absolutely correct – the EU’s founders and subsequent leaders adopted an unapologetically antidemocratic “if we build it, they will come” approach to constructing their new European superstate. They figured that if only they could get all of the institutions set up and orchestrate enough power grabs from member states to Brussels, the entire project would be a fait accompli and ordinary people would simply have to make their peace with taking orders from elsewhere, and being represented by institutions to which they felt no allegiance and often barely recognized.

But Fareed Zakaria doesn’t pause to marvel at this slow-motion, silent coup or acknowledge that its opponents may have a point in at least raising concerns about it. He and Bono simply look forward to the time when the various peoples of Europe have been successfully re-educated and taught to love their new overlords:

According to the latest European Commission surveys, 71 percent of Poles say they feel attached to the E.U., more so than Germans or Spaniards, while 61 percent of Hungarians feel attached, outstripping the French, Swedes and Belgians. The problem is, it isn’t a deep, emotional bond — they are three to four times more likely to feel very attached to their own nation than to the E.U.

Apparently it is a problem that we do not feel attached to these institutions built largely without our consent, input or oversight. It is problematic, according to Bono and his acolyte Zakaria, that people object to vast new and powerful layers of government constructed at a geographic and political level that we naturally do not feel strong allegiance to because of entirely normal cultural and historic differences. It is something, goes this argument, that must be overcome or suppressed for the Greater Good.

Ordinarily I would enjoy sitting back and watching Fareed Zakaria’s smugness, moral certainty and profound lack of curiousness about people from outside his hermetically sealed intellectual bubble come back to bite him. But I cannot do so, because Zakaria’s loss and humiliation will be all of ours, too. None of us stand to benefit if the worst and harshest elements of the populist revolution take over our politics and trample over our imperfect but essential institutions. A proliferation of Viktor Orbans throughout Europe is not a price worth paying to see the smug self-satisfied smile wiped off Zakaria’s face.

And this is the frustrating thing. In the fight against racism, xenophobia and authoritarianism, we should be allies. But Zakaria will not engage in good faith with the opponents of technocratic, managerialist, supranationalism. He is unable or unwilling to distinguish between discomfort and disagreement with the direction and destination of European political union and “hostility toward strangers, foreigners, anyone who is different”. Because Fareed Zakaria and a hundred prominent journalists and politicians like him are incapable of distinguishing between legitimate criticism of the status quo and support for the worst elements of the populist revolution, they are able neither to call their own side to account for their failings, nor chart the kind of compromise we ultimately need to preserve the benefits of globalization and internationalism with the rightful demand of ordinary citizens for democratic control over their destinies.

This is the real conversation – and I have been saying this for years now – that we urgently need to be having. We need our smartest minds and those with social capital to come together to develop answers to these big questions. But instead, almost to a person, they would rather zip around the globe from Davos to Aspen to Kiev, commiserating with themselves, hobnobbing with aging rock stars, stroking their metaphorical beards and wondering why the rest of their fellow citizens stubbornly refuse to fall into line and get with the program.

Fareed Zakaria will no more learn about the origins of and solutions to populism from Bono than he will learn about bioethics from Justin Bieber. That he felt no sense of shame putting his name to this execrable article in the Washington Post leaves me with a feeling of profound frustration and despair.

But Zakaria is not alone – indeed, his article is emblematic of the cognitive bias which runs through the upper echelons of the corporate, cultural, educational, governmental and journalistic institutions which together set society’s direction of travel (and in the latter’s case, report back on the situation with a laughably false veneer of objectivity).  The only difference between Fareed Zakaria and the rest of them is that he was stupid enough to print what the rest of them think in private on the pages of the Washington Post.

Two years after Brexit, nearly two years after Trump and still the Smartest Guys In The Room™ exhibit no self-awareness, no introspection, no respect for opposing viewpoints and no new ideas beyond “more Europe, more technocracy, more unaccountable supranationalism, and if you don’t like it then there must be something wrong with you”.

Zakaria can commune with Bono all he wants, but it will not save them or us from the slow-motion collision with reality that the West is now experiencing. Yet he prattles on in the Washington Post oblivious to the danger because in Fareed Zakaria’s mind, he and the people he interviews cannot be wrong about anything, and theirs is the only valid perspective.

In the words of Evelyn Waugh, “They were too old and they didn’t know and they wouldn’t learn. That’s the truth.”

 

Bono - U2 concert - EU flags - Brexit

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The Perfect Storm: When Continuity Remainers Meet NHS Worshippers

Peoples vote for the NHS - Brexit - EU

 

When all else fails, Continuity Remainers invoke the NHS in their last-gasp attempt to win support for their “People’s Vote”

The past few years have seen an inexplicable surge in the release of implausible, cheaply-produced disaster movies, aided by the falling costs of CGI, with plots based on supersized or hybrid creatures doing battle with the unfortunate humans who encounter them.

One of the first such movies, Sharknado, premiered in 2013 and is now up to the sixth film in the franchise (The Last Sharknado: It’s About Time). The dubious low-budget aspiring cult classic has also spawned spin-offs such as Lavalantula, a gripping tale of fire-breathing spiders which take over Los Angeles. Indeed, in order to maintain viewer interest the premises and storylines have had to become more and more outrageous, such that most new movies in the genre now require more than one type of freakish hybrid monster pitted against another – see Sharktopus vs. Pterocuda, in which a half-shark / half-octopus fights a half-pterosaur / half-barracuda for ninety excruciating minutes.

And as is often the case, what screenwriters see in their florid imaginations is eventually reflected to some degree in the real world. Right now, for example, British politics can be best analogized to the climate disaster movie The Day After Tomorrow, in which multiple large storm systems combine to create a deadly superstorm which plunges the world into a new ice age.

One such storm in Britain – as ever present as the red spot on Jupiter – is the constant chorus of mindless praise for the National Health Service, a gale which blows moderately during Labour administrations but turns into a full force hurricane whenever the Conservatives are in charge (despite the constant failure of the Tories to destroy the NHS, as warned by the Left). This storm system manifests itself in the hordes of pathetic activists who croon love songs to the NHS on YouTube, but also in actual political parties which have been established for the sole purpose of uncritically venerating this one very specific public service.

Another such storm, much more recently developed, is generated by the ongoing howls of indignant outrage from Continuity Remainers who lost the EU referendum in 2016, failed to engage in any introspection during the subsequent two years and who have now convinced themselves that they and the entire machinery of the British state were plucky and outmatched underdogs who lost against a dastardly Leave campaign with a complete monopoly on lies and misinformation. To their minds, Brexit is an evil con perpetrated by Boris Johnson, Jacob Rees-Mogg and the Russians, and while the issue of Britain’s EU membership should never have been put to a public vote in the first place, now that the people have foolishly voted to leave the EU we must immediately hold another “People’s Vote”, and another one after that if necessary, until the current result is overturned.

Two political storms, both alike in stupidity. And now, as in a bad sci-fi movie, these two storms have collided and given us a superstorm – something new but equally tedious to watch:

 

Just as every general election since the 1950s has been billed as our last chance to save the NHS, now we are being told that thwarting Brexit and keeping Britain in the EU is the only way that a benighted country like the United Kingdom can possibly continue to provide healthcare free at the point of delivery.

Why? Because some opportunistic souls working for the Astroturf, Not At All Funded By Foreign Billionaires group People’s Vote realized that there were few more effective ways to rally hordes of whinnying, metro-leftist, public sector voters to their banner than by merging their own pet issue with the seventy-year campaign to Save Our NHS.

This is the new B-movie of British politics. Call it Sharktopus, call it Pteracuda, call it the Perfect Storm – what we have are two laughable, commercially dubious characters or phenomena forced together and foisted on the public in the grasping hope that the people will be too dim to see through the cynical political manipulation and buy into the resulting hackneyed storyline.

Watching Continuity Remain merge with Britain’s incessant Cult of the NHS is like witnessing two giant storm systems collide and combine to produce a Force 5 shark-spitting tornado of self-obsessed, teenage drama. This is disaster porn for crusty socialists and upper middle class EU cheerleaders who have yet to learn that a public which was not persuaded by hysterical worst-case scenarios during the 2016 referendum is not going to be effectively persuaded by an even cheaper, more ludicrous sequel two years later.

The ironic thing, though, is that these B-movie producers of British politics don’t see themselves as peddlers of low-budget tat; on the contrary, they think that they are highly skilled directors producing a critically acclaimed masterpiece. These are the folks who consider themselves the smartest people in the room, the people who think that their social position, academic credentials and professional accomplishments make them uniquely equipped – and entitled – to chart Britain’s political course. And the best that Britain’s top policy minds have come up with in response to Brexit is “let’s try shouting about the NHS at the same time we shout about the EU”. No introspection. No positive, compelling vision for Britain within the EU with which to convince swing voters. Just more worst-case scenario disaster peddling from the same overcredentialed mediocrities who still haven’t figured out why they lost the last round.

At this point, one can only laugh. If they were to have any hope of decisively seizing the public imagination and turning the tide against Brexit, Remainers needed to come up with a rich, compelling and superior new narrative. They needed to produce The Godfather, but instead they have given us Sharktopus.

 

Jaws vs Sharktopus

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More Lessons In Patriotism From An American Border Town

 

Open Borders zealots and anti-immigration hawks could yet come to a pragmatic compromise that works for all, if only they stopped viewing the immigration debate as a zero-sum, existential war. This Texas town shows the potential fruits of such compromise.

One of the nicest things about having moved from Britain to the United States is the fact that I now live in a place where patriotism is not (yet) a dirty word. Going about daily life here, every day one is reminded in a handful of small but significant ways that people are proud of their country, and proud to be American. Not in an overt sense – rarely does the sentiment even have to be articulated – but more in the matter-of-fact way that certain rituals, symbols or expressions form part of the backdrop of daily life.

I have never been one to seek out tub-thumping, bombastic nationalism, and readily concede the dangers of moving too far in that direction. However, there is an equal and opposite effect moving in the opposite direction toward an overt hostility toward patriotism which is every bit as corrosive and harmful to society as unbridled nationalism. Britain is a chronic – perhaps even terminal – patient in this regard.

One of the main areas of pushback from the British Left whenever somebody dares to suggest that they might consider making their peace with patriotism rather than continually striving to publicly repudiate it is that the expression of love for one’s home country is somehow off-putting to or exclusionary of new (or old) immigrants. This, of course, is highly presumptuous and indeed offensive to many immigrants, who chose to make Britain their home precisely because they see and value those qualities in our country which our political and intellectual elites often scorn or overlook.

This is one of those occasions where Open Borders leftists are their own worst enemy. If they were at all savvy, they would realize that encouraging assimilation of new immigrants into their new home country is one of the most important means by which public opposition to immigration can be reduced in the long term. But so hell-bent are they on promoting supranationalism and eroding the nation state by any means possible that their own zealousness creates or exacerbates the very anti-immigration public pushback which now so upsets and confuses them.

Open Borders leftists and pragmatic conservatives in the UK might be able to find common ground around a policy of promoting a strong national identity and unapologetically affirming small-L liberal British values, and encouraging immigrants to embrace that identity in concert with their own. But with the progressive left so in thrall to the Cult of Social Justice and Identity Politics, many of their activists and leaders are unable to get beyond the “celebrating diversity” part to focus on the deeper attachments which must unite us if we are to avoid complete national disintegration.

Yet every day we see examples of immigrant and border communities doing this work – forging this melting pot – by necessity, in the absence of any leadership from above. Less so in Britain, but very much so here in the United States, the original melting pot.

Earlier this summer I wrote at length about my experiences spending my first 4th of July in Texas as a permanent resident of the United States. I remarked on how a heavily-Hispanic border town – one thrust unwillingly into the limelight as a result of the Trump administration’s child migrant detention policy, no less – seemed to effortlessly demonstrate the kind of simple, unifying patriotism which those on the far right claim to be impossible and those on the identity politics left view as a deeply undesirable concession to colonialism and white privilege.

And now the town of McAllen, Texas serves up another fine example of the way in which simple patriotic rituals help to unify people who hail from diverse racial and cultural backgrounds.

From ValleyCentral, the website of the local CBS affiliate:

McALLEN – A packed house filled the McAllen Memorial High School Gymnasium to watch a district match-up between the Mustangs and crosstown rivals McAllen High School on Sept. 18.

Fans roared as introductions were made for each player, but, when it was time to stand an honor the flag with the playing of the national anthem, nothing played. A few laughs and some awkward silence later, a small choir began to form in the far corner of the gymnasium. Soon enough, the entire gym was stressing their vocal chords in the tune of the Star Spangled Banner.

You need to watch the video to get the full effect – see the link above.

Again, this is a town not ten miles from the border with Mexico, a town which is heavily Hispanic, where many families have links to Mexico, Central or South America and where people take rightful pride in their cultural heritage – see the Mariachi singers in the video above, performing the Star Spangled Banner before another McAllen school sports game a few years ago. But it is also a town where these identities slot naturally and effortlessly into a greater, unifying American identity – E Pluribus Unum.

Before the naysayers retort that this is an alien culture and ritual which may work in America but which would never be suitable for Britain, it is worth remembering that a few decades ago it would not necessarily have been uncommon for the national anthem to be played at all manner of events, from village fairs to movie screenings to sports events besides the FA Cup Final.

This is not a call to return to some straight-laced, black-and-white conservative fantasy about the good old days – Britain has certainly developed and improved in countless ways since the days when BBC television shut down at midnight to a chorus of God Save the Queen, and by no means should we seek to wind the clock back, even if it were possible. But how much better still could Britain be if we had tried harder to hold on to some of these unifying symbols of shared identity at the same time as we welcomed new waves of immigrants to the country, with all the richness and diversity they rightly bring with them? How much more of a cohesive society at ease with itself might we now be?

If we continue in our current state of zero-sum open warfare between the open borders brigade and the anti-immigration faction then we will fight to a stalemate and the worst of both worlds – a continuation of the status quo, with all its attendant corrosive effects on our political debate and societal cohesion.

But alternatively, if both sides were just to give a little – the progressive left to call a time out on their ceaseless efforts to undermine the nation state and denigrate patriotism, and the populist right to accept that it is neither feasible nor desirable to return to pre-2000s levels of net migration – then we could try to work toward a compromise. We could achieve what is perhaps the optimal scenario – a cohort of new arrivals into Britain who come with the intention of either becoming British citizens themselves or at least partaking meaningfully in our culture and civic life, rather than defiantly remaining, say, Spaniards in London or Pakistanis in Rotherham.

This might not be an insurmountable task, if only we had political leaders who actually dared to lead rather than pander and follow the most extreme elements of their activist bases. Absent such leadership, however, it is nothing more than wishful thinking.

 

McHi McAllen High School game - national anthem - Mariachi Oro

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RBG, Senate Judicial Confirmations And The ‘Good Old Days’

Ruth Bader Ginsburg at GW Law School

 

A bipartisan Senate confirmation process for Supreme Court nominees was only possible when politicians were idealistic enough to view the court as being above politics, and trust it to remain so

In her appearance yesterday at GW Law School, Supreme Court Associate Justice Ruth Bader Ginsburg was asked to reflect on what had changed since she was nominated to the court by President Bill Clinton in 1993, and her thoughts on the new landscape as Trump nominee Brett Kavanaugh awaits confirmation by the Senate.

In her response, Justice Ginsburg lamented the sharp decline (if not extinction) of bipartisan cooperation and mutual trust between Republicans and Democrats, conservatives and progressives. Ginsburg was confirmed by a vote of 96-3 when she was up for nomination, a tally that would be unheard of today, when political polarization often makes us think of each other more as enemies than fellow citizens. Still, Ginsburg expressed a desire to roll the clock back.

From the National Review:

In a Wednesday appearance at George Washington University Law School, Justice Ruth Bader Ginsburg lamented the degree to which partisanship has infected the judicial-confirmation process, calling Supreme Court nominee Brett Kavanuagh’s recent confirmation hearing a “highly partisan show.”

Contrasting Kavanaugh’s hearings last week with her own, which occurred in 1993, Ginsburg called the partisan grandstanding of Democrats “wrong” and expressed a desire to return a spirit of collegiality to the process.

“The way it was was right. The way it is is wrong,” Ginsburg said to applause. “The atmosphere in ’93 was truly bipartisan. The vote on my confirmation was 96 to three, even though I had spent about ten years of my life litigating cases under the auspices of the ACLU and I was on the ACLU board. . . . That’s the way it should be, instead of what it’s become, which is a highly partisan show. The Republicans move in lock step, so do the Democrats. I wish I could wave a magic wand and have it go back to the way it was.”

This, together with virtually everything else the Justice said, was met with wild and fervent applause in the hall, and enthusiastic agreement online after the fact. And Ginsburg is certainly right – the American system of government can not work as it should when the Supreme Court becomes simply an extension of Congress, where partisan justices nakedly vote to advance a party political agenda and the Constitution is treated as little more than rhetorical clothing for their decisions.

Justice Ginsburg’s confirmation process reminds us that even as recently as 1993, the Senate was able to do the right thing – to confirm a qualified candidate for a position on the highest court in the land on the basis of her known competence and record, even though at least half of the senators voting to confirm her probably disagreed both with her politics and her judicial philosophy. Back then, senators still understood and acknowledged that the test for a Supreme Court candidate was not whether one agreed with their judicial philosophy, but rather whether or not the nominee’s philosophy and approach to the law was derived and applied in good faith. In Ginsburg’s case there was no doubt, and so many Republicans lined up to vote for a card-carrying ACLU member and avowed friend of abortion rights.

Fast-forward to 2018, and how different things look. Desperate to prevent outgoing President Barack Obama from making a third appointment to the court, Republicans created out of thin air a new pseudo-rule that presidents in their last year of office must refrain from making appointments and wait instead for their successor to take office. Thus, Senate Majority Leader Mitch McConnell prevented the senate from even considering the nomination of Obama nominee Merrick Garland, an eminently qualified candidate, allowing the newly-elected President Trump to nominate Justice Neil Gorsuch to the “stolen” seat.

Now, with President Trump in the White House in the prime (or perhaps nadir) of his first term, many Democrats are inventing another pseudo-rule that presidents whose political campaigns are under investigation for potential corruption and coordination with a foreign power  should not be allowed to fill an opening on the court.

Of course, even if both sides did not have their respective arguments to fall back on, most senators within each party would not vote to confirm a candidate seen as sympathetic to the other side, no matter how well qualified. The entire process has become a performance spectacle, where senators with absolutely no intention of voting for a nominee under any circumstance still wail and rend their garments about not being provided with the documents they have already admitted will not influence their negative decision.

Jonathan Turley (full disclosure: my current Torts professor) explains at greater length the problem with theatrics superseding substance:

[T]he Kavanaugh hearings left a troubling and damaging precedent for a process that already lacked substantive content. I have been a critic for years of the modern confirmation hearing, which is largely about senators rather than nominees. The hearings drained what little substance remained in the process. The unilateral denial of documents and theatrics of the opposition left the hearings as little more than a stunt by both parties.

In the absence of sincerity, everybody is now playing a role rather than speaking honestly about their motivations. Judicial nominees play a role (usually that of someone who has taken a vow of silence), senators play a role (amateur dramatics wannabes, mostly) and we all play a role, pretending that we want bipartisanship when really we would be quite happy to stuff the court full of likeminded souls and call it a day.

 

All of which led me to question why everybody applauded Justice Ginsburg as she called for a return to the bipartisanship of the early 1990s. The justice is absolutely right, but many of those applauding – particularly on the Left – seem not to have thought through the consequences of what it is that they are endorsing.

A return to 1990s, Ginsburg-era bipartisanship would see Trump nominee Brett Kavanaugh confirmed by a margin nearly as large as the Notorious RBG’s 96-3 blowout. Why? Because while probably far from the greatest American legal mind alive today, Kavanaugh is eminently qualified for the role. His former classmates and professors at Yale Law School say so. His former law clerks say so. The American Bar Association, which is invited to rate all nominees and testify as to their suitability, rates him as highly qualified.

The only issue would therefore be his conservative politics, past service with the Bush administration and the seeming antipathy of his judicial philosophy to the reasoning behind Roe v. Wade. And by that standard, Democrats would have to swallow their bile and give the man their support. That’s what Republicans did when they voted for Justice Ginsburg, and unless their crocodile tears for the age of bipartisanship are a complete lie, then that’s what Democrats would have to do, in the spirit of consistency, for Brett Kavanaugh.

Some might argue that this is different, that Kavanaugh would be filling the “swing seat” recently occupied by retired Justice Anthony Kennedy and thus tilting the court in a more conservative direction, while Justice Ginsburg’s 1993 appointment merely preserved the pre-existing balance. But there was no asterisk by the word “bipartisan” when Justice Ginsburg uttered it and everybody cheered. She did not say “bipartisanship, except when the ideological alignment of the court is in question, at which point everyone should vote in as nakedly partisan a way as they see fit”. She called for a return to senate bipartisanship, period.

And true bipartisanship with regard to the Supreme Court means accepting the somewhat random nature of the court’s changing shape – that the ideological or philosophical leaning of the court will fluctuate depending on when individual justices retire and which party happens to hold the White House when they do so. True bipartisanship would entail Democrats voting for Brett Kavanaugh and more Republicans voting for the likes of Sonia Sotomayor (68-31) or Elena Kagan (63-37) without complaint, based on their status as qualified, competent candidates.

(We should avoid becoming misty-eyed about the past, though – Justice Clarence Thomas was confirmed to the Supreme Court only after highly contentious hearings and a wafer-thin, decidedly partisan 52-48 vote).

If giving this bipartisan benefit of the doubt now seems impossible – if the idea of vesting many of our fundamental rights and privileges on nine unelected judges who may sometimes lean conservative – then rather than seeking to pack the court with our own ideological soulmates and protesting when the other side does the same, we should return to a system where the rights we consider to be fundamental are put out of daily political reach and enshrined in the Constitution, rather than being fortuitously discovered by “activist” courts or cruelly struck down by “reactionary” ones.

Democrats no doubt argue that in the case of this nomination, the stakes are so high as to justify any lengths of procedural opposition. But Republicans say the same thing when Democrats are in power. That’s what happens when we see each other not as fellow citizens with legitimate political differences but dangerous enemies who pose emotional and physical harm to one another.

I have only been a law student for a month, but even now I can see that the Common Law (and case law in particular), while an remarkable, complex and ever-changing creation, is the very last place you want to vest your most fundamental freedoms. Why? Because fundamental rights which only exist as judicial opinions are at daily risk of being reshaped, expanded, curtailed or reinterpreted by courts across the land. That’s why the right to free speech is properly enshrined in the First Amendment to the Constitution, a safe place where it is much harder to “get at it”, rather than existing as a few throwaway lines in Smith v. Smith, where today’s prevailing attitudes could alter its meaning in about the same subtle way that an avalanche reconfigures a mountain slope.

If we were being honest and sincere when we applauded Justice Ruth Bader Ginsburg’s call for a return to bipartisanship last night, we need to hold ourselves to that higher standard at all times, not simply mourn its loss when the other side holds the reins of power. We need to do the harder work of engaging with our fellow citizens and convincing them that our ideas are superior, building enough of a national consensus that we can prevail with legislative (and where necessary, Constitutional) solutions rather than seeking to take judicial shortcuts around public opinion or political impasse.

Justice Ginsburg talked about “wav[ing] a magic wand” to return to the days of bipartisanship and a less politicized judiciary. But there is no magic solution, no one action that can be taken. The legitimacy of our legal system depends on the behavior of those who run it, supervise it and avail themselves of it. We could return to the days of Justice Ginsburg’s confirmation any time we want, but with a vacant seat on the court today, that would mean Democrats paying a price that they are unwilling to pay. And, to be fair, why should they be expected to pay that political price when the Republicans have proven to be such untrustworthy partners?

So we either take the leap of trust together, or things continue on as they are, becoming progressively worse as every judicial nomination and every Supreme Court decision becomes an existential battle. I fear that despite these rare, commendable calls for bipartisanship, we all know which way we are headed.

 

UPDATE – 14 September

In a commendable display of legal objectivity, prominent lawyer Lisa Blatt – who refers to herself as a “liberal feminist” – writes for Politico Magazine, urging Democrats to vote to confirm Judge Kavanaugh despite their ideological disagreement with him.

Money quote:

I do not have a single litmus test for a nominee. My standard is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought. Kavanaugh easily meets those criteria. I have no insight into his views on Roe v. Wade—something extremely important to me as a liberal, female Democrat and mother of a teenage girl. But whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.

It’s easy to forget that the 41 Republican senators who voted to confirm Ginsburg knew she was a solid vote in favor of Roe, but nonetheless voted for her because of her overwhelming qualifications. Just as a Democratic nominee with similar credentials and mainstream legal views deserves to be confirmed, so too does Kavanaugh—not because he will come out the way I want in each case or even most cases, but because he will do the job with dignity, intelligence, empathy and integrity.

If we had more people who think like Lisa Blatt serving in the US senate – or indeed within the judiciary – then we might not be languishing in the bitter, distrustful, polarized stalemate in which we find ourselves.

 

UPDATE 2 – 14 September

Trust the extremists over at Above the Law to take an entirely contrary view.

Notorious RBG - Justice Ruth Bader Ginsburg

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