24 September 2016

West is won: Rangers clinch 7th division title

By T.R. Sullivan / MLB.com | @Sullivan_Ranger | 1:15 AM ET

OAKLAND -- The end came with runners at first and second on a high chopper to Rougned Odor. The Rangers' second baseman charged it and casually flipped the baseball to shortstop Elvis Andrus for the force.

With that final play, the Rangers officially returned to the top of the American League West for the second straight year and seventh time in club history. They did so with a 3-0 victory over the Athletics at the Coliseum, and now they wait to see who their opponent will be in the AL Division Series.


22 September 2016

September 22, 1862

President Abraham Lincoln issued a preliminary Emancipation Proclamation, which set a date for the freedom of more than 3 million black slaves and recast the Civil War as a fight against slavery. 

The proclamation was a presidential order and not a law passed by Congress, so Lincoln then pushed for an antislavery amendment to the U.S. Constitution to ensure its permanence.  With the passage of the 13th Amendment in 1865, slavery was eliminated throughout America.

07 September 2016

The Best of Both Judicial Worlds: Why State Justices Are Not Enough

Michael A. Fragoso writes from northern Virginia.

     My friend James Phillips recently wrote a fascinating Public Discourse article on how the next Republican president should select his or her Supreme Court justices. He argued that part of why Republican Supreme Court nominations have been lackluster is that we haven’t performed the right kind of vetting, so we have failed to arrive at a sound evaluation of a candidate’s durable legal philosophy. In short, when it comes to the Supreme Court, justices’ past performance is no guarantee of future outcomes because the job is unlike any other in the legal profession. A justice is really only as constrained as he or she wants to be.
     Phillips proposes a solution to this vetting predicament: look to the state supreme courts for potential nominees. In many instances, state supreme courts have the same final authority as the United States Supreme Court. State supreme courts are the final interpreters of pure questions of state law, and—as common law courts—their justices have considerable independent authority. As a result, Phillips argues, state justices have better paper trails than other contenders for the top slot. Circuit judges, by contrast, are typically bound by Supreme Court precedent. These constraints disappear once a judge is promoted to justice. A judge may have spent his life on the court of appeals faithfully applying Roe v. Wade and Casey v. Planned Parenthood and still want to overturn both.
     This is a very helpful perspective, but ultimately it’s incomplete.

     How Bad Have Our Justices Been?

     An underlying question for how Republicans should vet possible Supreme Court justices is how bad our justices have actually been. It’s no secret that Republican justices have been disappointing in many ways. Phillips points out that part of this involves a tension within conservative jurisprudence whereby “minimalists” (like John Roberts) prioritize stability, and “constitutionalists” (like Clarence Thomas) favor the correct constitutional answer et ruat caelum. Somewhere in between was the “fainthearted originalist” Antonin Scalia, while outside the playing field entirely were Republican “failures” like Warren Burger, Harry Blackmun, Lewis Powell, Sandra Day O’Connor, Anthony Kennedy, and David Souter.
     As I have explained at Public Discourse before, this way of looking at things puts the methodological cart before the horse. The development of the most recognizable forms of conservative legal thought post-dates most of the weak Republican nominees. The Nixon justices who gave us Roe were put on the Court to rein in Earl Warren, and that’s what they did. Recent scholarship supports this view. In his book Nixon’s Court, Professor Kevin McMahon argues that Nixon had a coherent political approach to the judiciary, whereby “law and order” and anti-busing judicial policies were prioritized as a way to appeal to northern ethnic voting blocs concerned about “the social issue” (urban degeneration). Broadly, Nixon succeeded both in winning their “silent majority” votes and in putting a stop to the pro-criminal excesses of the Warren Court and the later iterations of desegregation. But what about when legal conservatism got off the ground? Reagan still gave us O’Connor and Kennedy while the first George Bush gave us Souter. Even so, it’s hard to draw any sweeping conclusions from these choices. Sandra Day O’Connor was the result of a campaign promise to appoint the first woman to the Supreme Court. Given that her competition is thought to have been the late Judge Cornelia Kennedy of the Sixth Circuit—whose record was probably to the left of O’Connor’s—it’s possible that, given the totality of the circumstances, this pick dodged a bullet. Anthony Kennedy was Reagan’s third choice for the seat after the unprecedented derailment of Judge Bork’s nomination. In many ways, Kennedy’s appointment was a result of Justice Scalia (and conservatives) winning so much that the Democrats were sick of it. David Souter is really the only one where the vetting process failed, in large part because internal administration politics favored him on account of the parochial interests of some presidential advisors. As the saying goes, personnel is policy—no less when it comes to judicial policy.

The Case for State Justices

     But today we do have decades of developed legal conservatism, unlike in the Nixon and Reagan years. And there is institutional knowledge to help us avoid political pitfalls. So how should Republicans vet Supreme Court candidates to ensure a career-long commitment to sound jurisprudence? Should Republicans prioritize the state justices? Perhaps this is the coming trend: after all, Donald Trump surprised many by including five state justices in his list of putative Supreme Court nominees.
     As Phillips argues, there is a good reason for this. In many cases, state justices can decide what the law of their states will be with no real external restraints. Tort law, conflict of laws, state criminal law, state constitutional law, land use, and any number of other issues primarily fall to state supreme courts to unravel. A state justice, therefore, should have an ample and interesting record of how he himself approaches select legal issues.
     At the same time, it’s not entirely clear how a conservative should view this record. Some choices by a state justice are easily tested for jurisprudential soundness—for example, textualism in state statutory interpretation. But other choices can be harder to unpack. A state supreme court typically has significant policymaking authority in products liability litigation. Would a “conservative” state justice be one who uses this authority to make his state more pro-defendant? What if the state has a statutory regime that’s generally pro-plaintiff: would the “conservative” position be one that yields a pro-defense outcome or a pro-statute process? The answer probably depends on whether you’re asking a local law professor or a local businessman. In other cases, there just isn’t necessarily a “conservative” choice for state justices. Is strict adherence to the parole evidence rule “conservative”? Is interest analysis in conflict of law “liberal”? Where does one even begin with the rule against perpetuities? The answers aren’t obvious.
     Nevertheless, state justices also have the advantage of typically operating in an en banc environment. Although there are exceptions—the Court of Appeals for the District of Columbia sits by panel—a state justice needs to consistently herd all the cats of a full court to get her way. A successful state justice, therefore, has probably demonstrated the judicial-process savvy necessary to be an effective Supreme Court justice.

The Case for Circuit Judges

     And yet there are serious downsides to nominating state justices, given the differences between the state and federal judicial systems. The Supreme Court’s docket is full of cases unique to the federal courts: questions of international relations, intellectual property, federal jurisdiction, federal statutes (including federal crime), federal administrative law, and other areas of law where state supreme courts just aren’t active. Indeed, the federal courts—including the Supreme Court—are necessarily limited in their jurisdiction by Article III, just as Congress is by Article I. State supreme courts, on the other hand, are effectively common-law courts. While it’s true that state justices don’t have the constraints of judicial precedent, they also don’t necessarily have experience in the constitutional constraints provided by limited jurisdiction.
     Circuit judges, on the other hand, deal with almost all the same federal issues the Supreme Court sees. They are generalists in both federal and—through diversity jurisdiction—state law. Given the Supreme Court’s ever-shrinking docket, in the vast majority of cases a circuit court is the court of last resort for parties even if it is bound by Supreme Court precedent. And the circuits frequently handle cases of first impression where there is no binding answer. Indeed, the Supreme Court is known for relying on so-called “circuit splits”—waiting to see how different courts of appeals resolve an issue of law on their own—in deciding whether to take a case on certiorari.
     Furthermore, circuit judges have already gone through the process of Senate confirmation. While a Supreme Court nomination is orders of magnitude more taxing than a circuit nomination, the basic process should be familiar to a sitting federal judge. Many of the same players are involved. It’s not an accident that almost all Supreme Court nominations over the last forty years have come from the federal appellate bench.

The Best of Both Judicial Worlds

     So one category of choices—state justices—has a track record of independent thinking, but not the full spectrum of federal legal experience. The other category—federal appellate judges—has the background in federal law but lacks the relevant independent record.
    There is a solution: the next Republican president, when picking a Supreme Court justice, should look to a federal appellate judge who also served on a state supreme court. Such a judge would then have the proven record of sound independent jurisprudence to be found among the highest levels of the state bench, while also possessing the legal and political experience of a federal commission, and thus be most likely to persevere as an exponent of conservative jurisprudence. This combination is one that would yield successful Supreme Court justices.

01 September 2016

by Jean C. Lloyd: My Same-Sex Attraction and My Brother’s Disease: On Suffering and Serenity

Suffering can lead to serenity,
if we respond to it with trust in a loving God who will make all things right.
We must remember:
Love would not allow what Love could not restore.
     My brother and I are as different as night and day. He has an olive complexion with deep brown eyes, while I have lighter tones and eyes of blue. Whereas I am passionate and can be easily ignitable, he has a calm and even keel to his demeanor that I’ve come to admire. These and countless other differences I could list should come as no surprise because we are not biologically related. My brother was adopted as an infant, and sixteen months later, I was welcomed into the same family.
     Our parents were generous and loving, and they provided a stable home for us. We grew up in an idyllic middle-class neighborhood in a 1950s-era two-story house. We walked to our elementary school, memories of which I cherish to this day. While we both had experienced the tragedy of being separated from our birth families, our adoption was a beautiful redemption. My brother and I are forever grateful for the gift of our wonderful mom and dad. But tragedies, no matter how lovingly responded to, can still produce wounds that eventually must be attended to. Both my brother and I were thus wounded from the beginning. As with most other things, we dealt with our wounds very differently. I began asking questions in search of my birth mother as soon as I understood what being adopted meant. These were questions my brother resented and would not himself ask for twenty more years.
     My brother was also born with a physical deformity. A surgery performed in early childhood only served to provide painful memories and later complications. Whereas I was physically healthy, my brother always seemed to have health struggles. While this wasn’t “fair,” we didn’t think about it. We simply lived our lives, walking to school together, teasing and fighting with each other, and spending more time in our backyard pool than out of it during the summer. This continued until one summer when I went for an extended stay with relatives, including a sexually predatory uncle. Never to be the same, I returned home and withdrew into my room. I did not laugh with my brother any more, and my strong propensity toward depression began to manifest itself. I was ten.
     Meanwhile, my brother’s struggles increased. His physical problems made him the target of merciless teasing that would reach a hellish crescendo in high school. I was isolated, depressed, and infected with shame over the sexual abuse that I still kept secret. At age twelve, I began to experience same-sex attraction, which greatly added to my confusion. By the time we were fifteen and sixteen, I was clinically depressed, wearing a tuxedo to the school dance, and contemplating suicide. My brother was getting drunk during lunch hour just to get through the days. Blind to each other’s pain because we were absorbed in our own, he and I led parallel lives of dysfunction. There was minimal interaction and even some enmity between us.
     Somehow we survived and graduated. Though I had experienced a genuine conversion to Christ that undoubtedly saved my life in the midst of my suicidal, gender-bending days, the festering wounds remained. In college I abandoned my faith to embrace a lesbian identity and life. My brother’s life lacked direction, and his penchant for numbing his pain through alcohol increased to full addiction. In our quests to quell our aches, we both walked away from our Creator and His revealed will. This demonstrated that our problem went much deeper than our hurts. We were not only wounded. In C.S. Lewis' words, we were “rebels who needed to lay down our arms.”
     Eventually, by God’s grace, we were both roused to repentance by the “megaphone of pain.” For my part, to shorten a story told in other places, I traded my lesbian-centered identity for one centered in being a beloved child of God, and I sought to obey Him once more. For my brother’s part, he was finally diagnosed as having a degenerative disease of his muscles, more damage from the womb revealed. This diagnosis brought my brother back into the arms of the Good Shepherd who was searching for him. My brother has a tattoo on his upper arm: “Live free or die.” Though it probably resulted from a drunken dare, it expresses a valid desire. We were created for life and freedom. But true life and true freedom can’t be found apart from the Creator, the source of Life. And as any recovering addict or repentant sexual transgressor knows, the one who commits sin is the slave of sin. Real freedom comes only in walking in harmony with God and thereby maturing into virtue, goodness, and self-mastery.
     I have not seen that tattoo in over twenty years. My brother always wears long sleeves because long ago his disorder left his upper arms wasted and skeletal. The tattoo I do see is the one on his wrist to remind him of the One who suffered on his behalf by being nailed to a tree. This helped him maintain sobriety. When he was tempted to drink, he would look at his wrist and connect his pain to Jesus on the Cross, where suffering becomes redemptive and Christ’s pain heals all who are willing to say “yes” to Him.
     I had a different journey of dealing with depression, seeking sexual sobriety unto chastity, and recovering from much dysfunction. My twenty-seventh birthday came during a season of facing some deep wounds. I didn’t feel like celebrating and decided to go away. I told my friend Diane before leaving, “It’s not like it’s been just one thing, but it’s been thing upon thing upon thing.” That day, my friend Karen gave me a birthday card saying she had a sense that Joel 2:25 was especially for me at that time. I knew the verse well, a comforting and well-known promise, but in her handwriting, the second half of the verse leapt out at me. “I will restore the years the locusts have eaten: the swarming locust, the stripping locust, the creeping locust, and the gnawing locust.” Not just one thing, but thing upon thing upon thing.
     Thus away to a rustic cabin I went for three days of solitude, prayer, and fasting. I had one purpose: to question the Author about my life script. Under a large wooden cross on a hilltop, I sat down to talk to God as I enjoyed the evening sky. I had a list in my hand, a litany of complaints over life events that I would have written differently, beginning with the circumstances of my conception.
     As soon as I began to speak, the wind began to blow. A storm of some kind was coming, but the sky was cloudless, and I was undeterred. As I continued, the wind picked up and lightning began to strike. Each time I raised my voice, the wind whipped harder, until I was practically shouting. I watched in wonder at the repeated and increasing flashes that were streaking across the darkening sky. I finally fell silent, bested by the wind and in awe of the magnificence and beauty of the most amazing and continuous electrical storm I have ever seen. Lights danced in the firmament, and the only time I used my voice again that night was to praise their Maker. This glorious display was followed by two days of silence. I received no answers to my questions. I reread Job and was reminded that I was the one who would give account for my life to God, not He to me. In my final time of prayer before departing on the third day, under the cross once more, I laid down my life’s list and declared that I would choose to trust Him though I could not understand His ways. Then in the silence, as clearly as I have ever heard anything, I heard His Spirit whisper: “Love would not allow what Love could not restore.” In this gracious promise, I was given something far better than understanding it all. I was given the peace that surpasses answers and understanding, along with the hope of the gospel.
     The Serenity Prayer is a blessing and gift used in almost every twelve-step model of recovery there is. Most of us know the first four lines:
God grant me the serenity
To accept the things I cannot change;
Courage to change the things I can;
And wisdom to know the difference.
      Currently, however, there is less and less acceptance of things we cannot—or should not—change. With the increased power of technology, there are more and more “scripts” that we simply refuse. Don’t like the biological sex and body you were born with? Get hormones and surgery. Change it. Dealing with the wrenching pain of not being able to have your own biological children? Don’t worry about commodifying other humans and even your own hoped-for progeny. Change it. Are you pregnant but with too many babies or a baby with too many chromosomes? Abort and try again. Change it. Have a disabling condition that you can’t remedy? You don’t have to accept this script. Change it. Prepare your “final exit” with “dignity.” And the list goes on . . .
     True serenity becomes a distant illusion and true acceptance nonexistent. All gives way to our culture’s new form of “courage.” This “courage” refuses any limits and seeks to alter, medicate, and assuage every experience that gives us pain or pause. Wisdom is lost completely. Believe me, I am all for alleviating suffering. Explore every moral means available to you. But there is ultimately a limit—ethical, medical, or otherwise—to many of our efforts in this regard.
     As my brother ages, his disability progresses and his pain increases. It is a disease of dystrophy, not a terminal condition. But there is no cure, and there is a limit to what can be done palliatively to assist him. For him, to live in the body involves daily suffering. In our culture, many will rush to offer him the “on your own terms” option glorified by Me Before You if ever he should decide his pain is too much. Regardless of his responsibilities to his wife and child, our culture tells him that he has the right to self-determination—that he can set his own limits about the script he will “accept.”
     As a same-sex attracted woman, I was offered a rewritten script from some Christians in which celibacy was not required of me. While I’m sure they thought it was compassion, it was also an easier path for them than accompanying me in the midst of my storm. If I thought I was transgendered today, I’m sure they would encourage me to seek surgery and applaud my “courage” to change, considerations for husband, children, and my long-term health and well-being notwithstanding.
     But there is a second half of the “Serenity Prayer.” It provides the component needed to achieve the genuine serenity, courage, and wisdom sought in the prayer’s opening lines:
 Living one day at a time;
Enjoying one moment at a time;
Accepting hardships as the pathway to peace;
Taking, as He did, this sinful world
As it is, not as I would have it;
Trusting that He will make all things right
If I surrender to His Will;
So that I may be reasonably happy in this life
And supremely happy with Him
Forever and ever in the next.
     “Accepting hardships as the pathway to peace.” Read that again: Suffering can lead to serenity. If only we respond to that suffering with trust in a loving God who will make all things right. If only we receive His hope that extends beyond this life and world. The Lord is patient. He will help us come to that trust. He never stops pursing us, longing to have compassion on us, if only we surrender and turn to Him in our aching anger.
     Suffering and sorrow. Which of us would ever script our lives in such a way? My brother wouldn’t have chosen disease, addiction, or loss as part of his story. My birth mother would not have chosen a crisis pregnancy and the loss of her firstborn, nor my adoptive mother her infertility. On and on it goes. I never would have allowed sexual abuse or same-sex attraction to be written into my story. And yet it is that very suffering that helped lead me to serenity because it has led me to God.
     I am many years down the road from being twenty-seven and the words I heard on the hillside. Since then, I have known joys I never could have dreamed or planned along with trials so stunning they left my prayers wordless and tear-filled not just for weeks or months, but for several years. But I have also now lived long enough to catch glimpses of at least a few “other sides” of these sufferings. There is a beautiful work in progress. God can triumph over any twist of plot the enemy of our souls scrawls across our pages, and He writes a much better story than we do.
     This is not just my story or my brother’s story. It’s all of our stories. All of us are wounded from the womb. Sin has separated us from our Father. Life is our journey to find our true identity as beloved children of God and to let the Good Shepherd of our souls lead us home to Him. The Author behind both your story and mine is the King of Love. Give Him your “litany of locusts,” trust Him in your pain, and hear His promise anew: “Love would not allow what Love could not restore.”
 Jean C. Lloyd, PhD, is a teacher and a happily married mother of two young children.

Tribute to Stan by Bob Costas

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