Beware the Federalists

Federalist Society Judicial Ideologues

Injustice Rules

Supreme Court Justices were originally envisioned as impartial arbiters of what the United States Constitution required when disputes arose between people or those between people and their governments, large and small. The Justices are supposed to be legal scholars and put themselves above the partisan fray of their times. The nine who sit on the highest court in the land, after all, have the final say in those disputes they choose to resolve. 

From time to time in our nation’s history, the Court has strayed from its lofty mission of impartial decision maker and become a player for one side or another, diminishing its stature and credibility as a result. We are now caught up in one of those times. Partisanship does not become the blindfolded lady Justice.

The latest assault aimed at capturing the Court’s power and prestige was launched decades ago with the formation of the Federalist Society for Law and Public Policy Studies. It has become one of the most powerful and little known organizations in our political system. 

Funded by libertarians and conservative business interests, the Federalists have for years been recruiting and training lawyers to become judges in our state and federal courts. Those recruited are groomed to be conservative legal thinkers bound by the literal texts in constitutions and amendments. They give no room to modern notions of constitutional interpretation that take social and cultural changes into account when making important decisions. 

Take the Second Amendment to the United States Constitution for example. It was written to allow slave owning white citizens to keep arms against possible slave insurrection at a time when the average muzzle loading rifleman was at the top of his game if he could get off one shot a minute. Federalist literal constitutional interpretation of this Amendment makes ignores the facts that no one can own slaves anymore or that AR-15 rifles with high capacity magazines and bump stocks can deal death at hundreds of shots a minute. To these limited legal thinkers, this translates easily into banning most forms of gun control legislation as a violation of the original text. 

Our whole system of law is designed to maintain the status quo and apply the brakes to legal innovations. Unfortunately, the maintenance of things the way they are is not sufficient for the Federalists who want to return to a time long past when hierarchical gender roles were clear, white supremacy was the law of the land and government was supposed to stay out of your business.

With the election of conservative legislatures and executives, Federalist judges in waiting have finally achieved their nirvana. With Trump acolytes in control of the Senate, we will soon see a solid majority of Federalist trained or sympathetic Justices in control of the United States Supreme Court. 

Conservative controlled legislatures in state and federal governments will soon pass more laws challenging established precedents involving abortion rights, civil rights, gay rights, women’s rights, voting rights and many governmental regulations setting up disputes for final resolution by the U.S. Supreme Court. 

The Court’s decision in Roe v. Wade provides another example. It established a framework to end illegal abortions and save women’s lives. It did not allow unlimited abortions on demand, as many countries do. It has been used to strike down state and federal laws that limited access to early term abortions. We will soon see outright bans passed in many so-called “pro-life” states and the challenges to them will ultimately be heard by the Federalist dominated Court where they will receive a friendly reception. 

The only potential brake on the wholesale revision of constitutional law the Federalists embrace is found in an often-overlooked canon of judicial interpretation known as “Stare Decisis.”  Simply put, it means the Court should not overturn a prior decision of the same body unless there is a compelling reason to do so. A decision must have been so wrongly decided in the first place that no present court would make the same decision. As with most rules governing interpretation of the laws, there are many exceptions that the Federalists will use to rid us of those pesky precedents they do not like.

This brings us to President Trump’s recent nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia to replace Justice Anthony Kennedy on the Supreme Court. Judge Kavanaugh brings not only impressive Federalist Society credentials and experience, he also penned an impressive law review article advancing the startling proposition that a sitting president should not be subjected to criminal investigation or prosecution for illegal acts committed in office. For Judge Kavanaugh impeachment is the only remedy. This had to be seen as a “get out of jail free” card for this president. 

Needless to say, the partisans will pull out all the stops to pressure those few GOP Senators who don’t fear Trump’s tweets and those Democrats elected in Trump country.  It should make for an interesting confirmation process in the Senate. Stay tuned.

A Blue Wave Approaches

Scott Walker is Right

A Blue Wave is Coming                     

Tuesday’s election results, both local and statewide, show that a majority of voters are not happy with the current GOP leadership and policy choices and are looking for more moderate, if not progressive, leadership. The shocking local result was the “yes” vote on the City of West Bend street referendum where voters actually agreed to a modest increase in property taxes to fix too long neglected city streets. 

In a post-election tweet Tuesday night, Governor Walker tried to rally his base with a prediction of a Democratic wave swamping his ship in the Fall and a desperate plea for money after Milwaukee County Judge Rebecca Dallet beat Judge Michael Screnock by double digit numbers.  Walker campaign team staff ran Screncock’s campaign and traditional GOP backers, like the NRA and the Wisconsin Manufacturers and Commerce, contributed vast sums for TV ads, all to no avail. Screnock even lost to Dallet in his own home county. Walker’s pick for a circuit court seat in very red Waukesha County also lost. Dallet ran a liberal backed campaign against special interest money in politics and the current GOP results driven majority on the Court. She won handily in the cities and saw the red turn purple and even blue in many former GOP strongholds across the state. Those defeats sent a clear signal that voters, even in traditionally red areas, are no longer lining up for the Walker/NRA agenda.

In the other statewide race, a last minute liberal led charge saved the State Treasurer from extinction at the hands of the GOP legislative majority. Clearly, the legislative leadership wanted to be rid of their only constitutionally mandated financial watchdog so they could continue to loot the treasury and send tax windfalls to their crony supporters with no one else having a handle on the purse strings. Voters saw through the ploy and rejected the constitutional amendment that would have killed the office. Another blue defeat for the Walker led crew.

Walker’s miscalculation about calling special elections in two districts with vacant legislative seats undoubtedly helped swing voters, especially those feeling disenfranchised by GOP voter suppression tactics. When he lost legal challenges to his decision brought by former Democratic Attorney General Eric Holder, the legislature started to bring forward quickie legislation to change the special election rules only to abandon the effort when Walker caved and called the required special elections. The blatant power grab and disenfranchisement of local voters in those districts showed just how low the GOP leaders are willing to stoop in order to maintain power. 

One of the mantras of the far right ever since the famous “no new taxes” pledge took hold is that voters are sick of increasing taxes. West Bend’s alt-right Mayor and Council were so afraid to raise property taxes to fix the city’s crumbling streets, that they sought cover in the advisory referenda questions the voters answered clearly. The referenda question answers told the Mayor and Council that it would be acceptable to raise property taxes modestly, but not too much, in order to fix the streets and to try and persuade the county to help by sharing part of the county sales tax revenue with the county’s municipalities. District 7 Alderman Adam Williquette’s defeat at the hands of a candidate who ran on a “let’s fix the streets” platform should seal the deal. Time will tell.

The West Bend School Board race brought another bell weather election result. In the recent past, tea party extremists with anti-public school, anti-science agendas, have dominated the board. Last year’s school board election changed the board to a pro-public school, more teacher friendly majority and Tuesday’s election delivered a final and resounding rejection of the evangelical Christian attempt to subvert and privatize our public schools. Chris Zwagart and Kurt Rebholz ran on a pro-teacher, leave curriculum development to the experts and sound governance platform. They brought in convincing majorities against an incumbent who developed an alliance with an anti-evolution, anti-teacher zealot. It should not have been as close a result as we saw, but voters again rejected the extremist positions. One of the issues in the race is what to do about the aging elementary school in Jackson. The new majority has a mandate to fix the problem and the ability to convince majorities in the district to replace the old building with a new one. 

Our new school board majority can reject “no tax increases for schools” arguments by pointing to the 50 plus public school referenda approved by Wisconsin voters on Tuesday while only 6 failed. There is a clear mandate in those results showing property taxpayers are willing to pay more to support quality public education. They supported both operational and capital referenda, some with fairly large price tags, even after the GOP leadership passed new laws making it significantly more difficult for local school boards to raise property taxes for public schools.

Tuesday’s election results continue the momentum from the recent special elections where progressive Democrats made further inroads into previously red districts. It must not go unnoticed that our own Dennis Degenhardt, the former CEO of Glacier Hills Credit Union and Vice-Chair of the Democratic Party of Washington County carried the City of West Bend in the special election for our Assembly seat in the race against former County Board Chair, Rick Gundrum. 

I believe Scott Walker for once. A blue wave is going to swamp his ship in November.

Keep Church out of Public Schools

Religious Education Belongs in Church

Vote to Keep Church and State Separate

It always amazes me when we have to fight the same fights over and over again.

Our middle daughter attended West Bend West High School in the early 1980s. While she was a student there, a number of West Bend evangelical Christian pastors petitioned the school board to add “scientific” creationism to the high school curriculum. The board held a meeting to discuss the proposal. Anticipating a large turn out and a heated debate, the meeting was held in the old Badger gym.

Over 200 people attended that meeting, including representatives from the American Civil Liberties Union and professors of education and anthropology from the University of Wisconsin-Milwaukee. Over 50 people registered to speak at the meeting. Not one of the pastors who had signed the original petition spoke in support of their proposal. Most of those who spoke opposed the idea of bringing religion into the public school curriculum, including several Christian pastors who opined that religious teaching belonged in church schools, not public ones. I gave the board a copy of a recent federal court decision awarding significant monetary damages and attorney fees to parents whose children had been exposed to the kind of curriculum proposed here. In the end, the board voted by a slim majority to send the matter back to the board’s curriculum committee for further study where the proposal later died.

In the early 1990s, our youngest daughter was a student in the district schools. A group from the community brought up a proposal to add “intelligent design” origin theories into the science curriculum. All of the courts that had heard “intelligent design” cases up to that point ruled that it was just another name for the same creation theory the “scientific” creation cases barred from public schools in the past. Thankfully, the school board rejected this proposal, recognizing that the laws creating the wall between religious teaching and public education would expose the district to unnecessary litigation and expense.

Fast forward to this past Monday. The same basic fundamentalist Christian arguments reared up once again in board member Monte Schmiege’s comments during the discussion surrounding adoption of new science education standards for the district’s schools. Board member Joel Ongert correctly noted that Schmiege’s concerns were more properly applied to Sunday school classrooms than pubic school ones.

Schmiege noted that some scientific theories are based upon assumptions that can and, in some cases, should be examined and challenged if insufficiently supported. That idea does not open the door to challenges to assumptions underlying scientific theories based upon religious beliefs. If you want to challenge theoretical scientific assumptions, develop an alternative hypothesis, test it, test it again and report the factual findings that support your challenge to the assumption. Relying on ancient texts in dead languages translated to satisfy a 17th century church hierarchy has no part in a scientific discussion. In other words, everyone is entitled to their own beliefs, but not their own facts based upon those beliefs.

Schmiege’s comments exposed what has been evident in some of his public writings. In one, he opposes public education, is a strong proponent of allowing religious education in public schools and does not subscribe to the constitutional principles mandating separation of church and state.

Schmeige’s comments on Monday were supported by school board candidate Mary Weigand. Weigand also has a history of attempting to force her fundamentalist Christian views upon the community. About ten years ago, Weigand joined Ginny Maziarka in leading the fight attempting to ban certain books from the West Bend Community Library because the books’ same sex themes were offensive to their homophobic religious beliefs. Their challenges were ultimately unsuccessful when the library board voted unanimously to leave the books on the library shelves.

Weigand has for years promoted her beliefs that the earth is only 6,000 years old after being created as told in the biblical book of Genesis.  She created a booth setting forth her beliefs that man walked the earth with the dinosaurs after the creation and took it to county fairs around Wisconsin. Weigand has further taken her anti-science stances into our schools when she promoted abstinence only sex education in the face of established studies showing it to be ineffective in preventing teen pregnancy and sexually transmitted diseases.

Monte Schmeige and Mary Weigand are running for seats on the West Bend School Board in the election on April 3^rd. Your vote for Chris Zwagart and Kurt Rebholz will show the community that religious education belongs in churches, not in public schools and that science should be left to scientists who use the accepted scientific method.

Waring Fincke is a retired attorney and serves as a guardian for the elderly and disabled with a Sheboygan county non-profit agency.

Effective Government

Survival depends on effective government

Less government is not always better

We often hear “big government” vs. “small government” comparisons between candidates for public office. Unfortunately, this has created a false dichotomy used to label and demonize “liberal,” “lefty,” “socialist,” “tax and spend” Democrats and curry support for “taxpayer friendly,” “we’ll all get rich” Republicans. It is a fool’s choice.

The issue is more properly framed by asking is the government “effectively” doing what government is supposed to do?

Ever since humans developed language and survival skills, they have banded together to provide for common defense, provision of food and supplies, nurturing the sick and infirm and raising their offspring. Clans and tribes gave way to feudal monarchies that, in turn, morphed into democratic governments. All of these forms of human governments have, to greater or lesser degrees, provided these basic necessities for survival.

With increased economic wealth and power and much larger populations, governments have grown into massive organizations, but they are still charged with carrying out these same basic functions.

In every era throughout human history, cabals of the rich and those who would be rich have stood up and proclaimed, “We need more wealth.” This is usually coupled with claims that the current organization that ensures the collective survival is “too big” and “too expensive.” If only government were smaller, everyone would get to keep more of the wealth they all coveted. Many get sucked in by the slick snake oil sales pitch, believing in trickle down economic myths and tax scams that benefit only the very few at the top of the food chain. Every era of excesses brought on by these headlong cash chasing folks has ended in flames of recession or depression.

It is time to break the cycle before it goes bust once more.

Governments that ensure survival and growth of their large populations will always be large. They will only be truly effective if they satisfy the basic needs of the clan. With the passage of time and increases in knowledge about the interconnectedness of the human endeavor with the natural world these basic needs have become much more complex to ensure. Now we add in concerns about the environment, patterns of disease and increased violence, income inequality and fairness, the need for wild spaces and wild animals, food security, universal healthcare, quality public education, religious freedom, racial and ethnic diversity and a whole host of other concerns.

Those that see these concerns as nothing more than a drain on their personal pocketbooks, fight back by adding claims that the new concerns are not the business of government at all because they impinge on personal liberty. “Why should we have to pay for what we don’t like and don’t use,” but others need and cannot afford, becomes justification for opposition until the flood or fire comes and help does not. They trot out claims that all these concerns will be addressed when we all have an additional $2,000 in tax savings and can contribute to a local charity.

In our world, populated in the billions with dwindling food and water supplies, an increasingly angry climate and nuclear warheads on missiles that can reach everywhere on the planet, we cannot ever go back to those simpler times when the sailboat and steam engine were the main drivers of economic growth and political power. Personal freedom and individual responsibility are not enough to carry us all through. “What’s mine is mine and what’s yours is negotiable,” is no longer a workable strategy for resolving conflicts. Larger government only works if it effectively addresses these concerns.

It is time for a return to an approach to our collective problems based upon basic assumptions that everyone can contribute to the solutions and should have a voice in the decision-making. None of the concerns that we demand our government address are solely Democratic or Republican concerns. They are valid human concerns that will have an impact on the collective survival of the human tribe and need a collective response.

In our time of turmoil, we each have a voice in choosing how our collective government will ensure the survival of the clan. Will we contribute more and choose people who will manage those resources effectively for the common good? Or will we contribute less, keep more for ourselves and choose those who will lookout for the wealthy and themselves?

Your vote is your voice.

Waring Fincke is a retired attorney who serves as a court appointed guardian for the elderly and disabled with a Sheboygan county non-profit agency.

Blue Tides Rising

Voters Speaking Up.

Cooperation and Compromise are Key

With each GOP governing blunder that comes to light, we see Democrats stepping forward to run and win in special elections across the land. The political pendulum often rebounds in off year elections as voters see first hand that one-party rule does not work so well. Between now and next November, we will see a much more pronounced pushback primarily due to the continuously outrageous conduct of our president and his cohorts.

Congressional republicans were unable to pass any significant healthcare reforms because they refused to work with Democrats to earn enough votes to secure passage of even modest changes. Tax reform, now being used as a stealth weapon to repeal Obamacare, appears headed down that same road. Republicans in the Senate can only lose two votes on their tax reform proposal and the inclusion of Obamacare repeal will most certainly cost them the support of more than two of their moderate members. Rebellion from the right and left flanks will further stall any meaningful legislative activity before the mid-term elections next fall.

Elections across the country for state legislative seats and local municipal positions are already showing clear signs of voter discontent about GOP inabilities to get anything done on the important issues like infrastructure repair, clean elections, tax inequality and government giveaways to the wealthy who need them the least.

Here in Wisconsin we are beginning to see voter push back against the backroom secret deals like Foxconn that will punish middle class taxpayers for most of the rest of their working lives. Couple the bad Foxconn deal with the bumbling leaders in the Wisconsin Economic Development Corporation who cannot enforce any of their own lax rules and we will have an economic disaster that will take decades to fix. Wisconsin still lags far behind in job growth and business development even with massive corporate tax reductions and the lifting of regulatory burdens.

Wisconsin voters are also standing up for their local public schools. Over 70% of the public school referenda passed in the last cycle. These communities have had enough of GOP control from Madison telling them they cannot raise local taxes to support their schools. They are demanding return of local control to their elected school boards so they can provide the resources their educators need to prepare the next generation.

People are rejecting those who would impose outmoded religious beliefs upon their constituents through unconstitutional bathroom bills and gay discrimination laws by electing openly transgendered citizens who care more about fixing roads than which bathroom people use.  They are turning against those who would use their positions of power to sexually harass and assault those less powerful. Respect for women and protection of children are gaining political currency once more. Misogyny is on the way out.

As President Trump and his family continue to loot the treasury, his campaign staffers face federal indictments and industry insiders take control of the regulatory agencies that once kept them in check, voters are telling elected officials who support the Washington rulers that they made the wrong choice.

It is not about one’s political party; it is about the country and what America stands for around the world. With Trump supporting Putin and dictators in the Philippines and Saudi Arabia, American voters are demanding a return to measured diplomacy with our enemies and unwavering support for our friends. We cannot have a president who threatens nuclear war with North Korea in early morning tweets and cuddles up to Chinese leaders in hopes they will reign in North Korean nuclear ambitions. An America floundering about on the world stage with little apparent purpose does little to calm a jittery world already reeling from our withdrawal from climate change accords and trade pacts that stabilize international markets.

Average Americans who cannot reach out to their elected officials in any meaningful way to express their displeasure can only turn to the ballot box. In almost every one of those opportunities, we see rejection of the current status quo. Red seats are turning blue across the land. As the GOP digs in its heels and clings to it’s “my way or the highway, take no prisoners” approach to governing, the blue tide will continue to rise.

Look for leaders who will listen and ask, “what do you think?” These are the ones who can and will work across the ideas that appear to divide us to find solutions to the common problems we all face. These are the leaders and elected officials of our future, if we are to have one.

Waring R. Fincke is a retired attorney and serves as a guardian for the elderly and disabled.

Reject White Nationalism

White Supremacy Prevents Democracy

White nationalists recently marched at night in Virginia holding flaming torches while chanting racially charged and support for Russia slogans. The historic reference to Klu Klux Clan nighttime, torchlight marches was not lost on anyone familiar with America’s racist history. 

One of the Virginia marchers’ objections was removal of Confederate war hero statues from public areas in several Southern states.  Others phoned death threats to the crane companies employed in New Orleans to take down Jefferson Davis’ statue. The crane operators had to work at night and wear masks while taking down the statuary for their own protection.

Let that sink in.

Trump’s thinly veiled campaign plea to white supremacists, “Make America Great Again,” followed by his open embrace of unabashed white nationalists Steve Bannon, Sen. Jeff Sessions and others has unleashed a wave of racially motivated violence and protests across the country starting during his campaign rallies and continuing into his presidency.  His appeal to those who hated Barack Obama for no other reasons than his mixed race heritage and temerity to have been the leader of the free world for eight years was clear.

Jeff Sessions’ appointment as Attorney General and much of their subsequent shared agenda continues to exacerbate white fear of darker skinned fellow Americans. White racists are being openly encouraged to lash out publicly against those perceived as different and inferior, even after being shamed in Facebook videos. Videos from Wal-Mart checkout lines, public beach confrontations and stand your ground shootings by fearful white citizens and even police officers are much too common.

Those who denigrate fellow citizens because of perceived superficial differences seem to be easy prey for weak-kneed politicians who happily whip up racial frenzy instead of thoughtfully addressing real problems facing all of America’s citizenry. Senseless calls to deport or imprison those with different skin tones, foreign sounding names, culturally different clothing choices or non-Christian religious practices further inflame white fears and baseless notions of white superiority.

Travel bans unconstitutionally aimed at those who believe in Islam and come from some Middle Eastern countries, but not others, evidence Trump’s discriminate hatred of Muslims without a shred of proof they pose a danger to the homeland. Federal trial and appellate courts rightfully look to Trump’s campaign promises as evidence of his illegal racial and religious motivations in proposing the bans. Many of his supporters use the bans as a license to harass and intimidate people who look “Muslim,” even though they may just as easily be Christians, Jews or Hindu.

This imaginary fear mongering has found its way into our public policy in many other disturbing ways. Cuts to urban public education, failure to pass much needed infrastructure funding, get tough on crime policy pronouncements, frenzy over gun rights, opposition to sensible firearm restrictions, restrictions on local political control, new voter suppression laws, gerrymandered political districts, attacks on reproductive choice, restrictions on public health policy, environmental regulation rollbacks and even foreign policy decisions all have roots in white nationalistic superiority beliefs.

America is already great, in large measure because we have historically overcome notions of white Anglo-Saxon Christian superiority in favor of inclusion and diversity. We are stronger and project a more vibrant and creative image to the world when we embrace and celebrate our differences. We are better when we are kinder to our neighbors and the rest of those who share in the riches our fragile planet can provide. Divide and conquer politics diminishes our greatness and weakens the American fabric, especially when motivated by racial animus.

Trump’s pathetic calls for an end to words that incite violence will continue to ring hollow until he purges the ranks of his political appointees of the white superior nationalists and reverses the policies he and they have implemented to forward their mutually shared agendas.

Those of us from white Anglo-Saxon backgrounds take for granted our privileged position in American society and political life. That needs to change in favor of actively embracing a more diverse and inclusive world-view if we are to survive as a democracy. Authoritarian imposition of white superiority will never succeed and is a sure path to the end of the American democratic experiment.

All of us need to take a hard look at the actions our government is taking and hold those who enact them accountable when racial or religious bias is shown to motivate changes. We must step up and demand that our representatives adopt race neutral policies and laws that do not favor any religion over another.

Waring R. Fincke is a retired lawyer and serves as a court appointed guardian for the elderly and disabled.