Oped: The writing on the wall?

I appreciate the thoughtful and informed response from Mark Skehan (Feb 23) to my Op Ed piece as published in the Dispatch on Feb. 16. As he rightly suspected I did not submit a title for the piece and agree that ‘undeniable’ is too strong an absolute term to be tenable. Mark used that label six times in the article which suggests he was  disagreeing with the editor rather than with me.

Judicial appointments in this country are politically based, from county judges who run on a party ticket to Supreme Court appointments. Clearly, we expect Donald Trump’s appointment to this court to be chosen from his political vantage point, just as we expect current members of the court to vote in terms of their conservative or liberal leanings. Indeed, commentators comfortably project the outcome of upcoming decisions based on the political leanings of the members of the court rather than on the merits of the case, per se.

I know of no other western democracy that appoints its judicial figures on such a basis, and examples of judicial bias, whether real or perceived, are hardly surprising.

Mark and I can disagree on the concept of judicial overreach. Yes, the Supreme Court has given the legislature the power to decide on issues of immigration and border security, but that does not permit the legislature to operate outside the limits of the law or the constitution.  It is my understanding that the recent Executive Order temporarily suspending immigration rights was rejected by a unanimous decision of  three judges from the U.S. Court of Appeals for the 9th Circuit, and they forcefully asserted the  ability of the judiciary to serve as a check on executive power.  Any suggestion that it cannot, they wrote, “runs contrary to the fundamental structure of our constitutional democracy.” It is the concept of checks and balances, unique to this country, together with an an independent judiciary, which prevents the executive or legislature from abusing its powers.

What concerns me more are the personal attacks made by the president on judges who decide against him, starting with Judge Gonzalo Curiel and the class-action suit involving students of Trump University. This is where the German analogy becomes pertinent. I doubt that in 1933 many Germans could see the final outcome when Adolf Hitler ordered judges to swear an oath to him personally rather than to the constitution. It seemed such a small thing; just a few words. Yet we all know the result, not least the breakdown of the rule of law and the denial of justice to millions of European citizens with fatal consequences.

So my question is, how small of a thing is it when the president of the U.S. uses his executive office to demean and debase members of the judiciary? I don’t pretend to know the answer; I do not deny being concerned.

And yes, Mark, I agree, the ‘climate of fear’ is pervasive and of long standing, but as a country we have a choice : either to promote and advance it by emotional rhetoric as an  opportune screen behind which to pass convenient legislation, or to work to end it by compassion, listening and understanding. The president, any president, sets the tone, and rather than be gracious in victory Donald Trump seems to be increasingly vindictive and divisive, isolating different segments of our population even further.

Including Nietzsche in the list of German scholarship underlined the variety of opinions that were not only rife but tolerated in nineteenth century Germany; it was arguably the most civilized and forbearing county in the world at the time. There was room for Goethe and Mann and Nietzsche in 1890  but not by the winter of 1933, by which time books were being burned and opponents put in internment camps. It took less than a year to suppress the indulgent atmosphere and intellectual achievements of previous generations. Some Germans saw the writing on the wall and chose to leave; too many never spoke out until it was too late.

Again, the question for me is, what are the implications when the president of the U.S. uses his executive office to demean, debase and exclude journalists in particular and the media in general, except those who support his pre-held convictions? Can a democracy flourish when the fourth estate is manacled, threatened and devalued?

As Mark suggested, history is not linear but there are broad lessons that can be drawn. In the 1920’s and 30’s there were a set of conditions in Germany, Italy, Spain and the Soviet Union that were conducive to totalitarianism. A lengthy, devastating war, economic uncertainty, inexperienced democracies, education systems that rewarded obedience rather than rational thought, and a series of charismatic demagogues with a minimal education who used emotion and vague promises to arouse populist support. Add to that the invention of the microphone and radio by which, for the first time, the opinions of those in control could be conveyed into every home. It’s a matter of opinion, and perhaps personal experience, as to the extent to which any of the above are pertinent to the U.S.

My sense is that there is one lesson of history on which Mark and I will agree: A populace which sacrifices liberty for security ends up getting neither.

— Jeremy Barnes is a resident of Springfield Township.