Those times are these times: Reflections on the Feast of the Holy Innocents

According to the Gospel of Matthew, in the immediate aftermath of Jesus’ birth, King Herod was visited by wise men, who had followed a star to find the newborn king of the Jews, the Messiah. After ascertaining that he was in the vicinity of Bethlehem, Herod dispatched these wise men to find Jesus. When they found him, they gave him their gifts of gold, frankincense, and myrrh, then returned to their own country having been warned in a dream that Herod would betray them.

Then, when Herod, who feared Jesus as a threat to his power, realized their deception, “he was infuriated and he sent and killed all the children in and around Bethlehem who were two years or under.” In the interim, Matthew’s account tells us, Joseph had been warned by an angel to flee to Egypt, thus escaping Herod’s scheme.

Today is the feast of the Holy Innocents, commemorating the victims of Herod’s attempt to murder the newborn Jesus before he could grow up and challenge Herod’s authority. It's been celebrated since the fifth century, and in some places involved into a feast of social inversion, much as Christmas became in the English-speaking world, to the point that even today there are places where it serves as a kind of April Fool's Day, with pranksters tormenting "Innocents."

I'm not religious, but the Feast of the Holy Innocents matters to me for several reasons. First and most immediately relevant is that if I am a historian at all, it's because reading about an event that took place on this date in 1022 stoked the fires of scholarship. It is an event that resonates in the current moment, not just for the ties invoked between the flight of Joseph, Mary, and Jesus into Egypt and the current immigration debate, but because it is a step along the path to becoming the sort of society we are.

“In those times," the Limousin monk Adémar of Chabannes wrote some five years after the event, "then among the canons of the Church of the Holy Cross at Orléans, who appeared to be more religious than others, were shown to be Manichaeans. Whom King Robert [r. 987-1031], when they would not be reverted to the faith, ordered defrocked, removed from the church, and thrown to the flames."

The clergy in question (their number and beliefs vary according to the five or six accounts) were wrong believers, heretics, obstinate in their heterodoxy, and were executed for it. At most, they seemed part of an illuminist group with some secret knowledge, or gnosis, as their core tenet. More likely they were would-be reformers, whose views provided a preview of the coming reform movements.

Big deal, right? If there's a stock image of the Middle Ages, burning heretics is part of it.  But here's the thing, in 1022 no heretic had been executed in the West for over 600 years. This was a new thing and a big deal. The last heretic to be executed in the West had been Priscillian of Avila, executed in Trier, Germany around 385, not for heresy, but for sorcery (maleficium). Under Roman law this was a capital offense and the punishment was...burning.

The Orleannais heretics were, then, executed as witches would be on the Continent for centuries to come (in the English-speaking world, such as Salem, the punishment was hanging). Indeed, this was justified in some of the accounts by reference to diabolical orgies and a magic powder made from the ashes of babies born of them. These seem to be later inventions. The further away, in time and distance, one gets from the event, the more lurid the descriptions, even from a supposed infiltrator who helped reveal the heretics. Before Adémar wrote his version of events, a version which incudes the witchcraft libel, there were two others, written probably by eyewitnesses to the trial, and neither mentions magical aspects.

But here's the thing: the problem of heresy was less important than the problem of politics. When we think of the King of France, we think of someone like Louis XIV, whose dominion extended beyond the territory we think of as France. Robert the Pious was nominally king of pretty much that same era, but his practical authority didn't extend much past the Île-de-France. Orléans was a place Robert was trying to extend his power, competing with the Count of Blois, Odo, whose animus was both political and personal, since Robert had divorced Odo's stepmother for a more politically advantageous match. At this point they were competing to see who would install the bishop of Orléans.

According to one account, supposedly based on the account of a participant who happens to be the hero of the story, the heretics were unmasked by a knight named Aréfast, who was a favorite of Robert's. Surprise, surprise, though, the heretics (or were they? that's a barrel with no bottom) were clerics close to the king. In Aréfast’s telling, one of the heresiarchs is the queen's confessor. She is so angry in the story that she puts his eye out with a staff! Whatever the case, the events were definitely not a good look for the king in this ongoing struggle, explaining his decisive action.

The heretics themselves were sacrificed on the altar of Robert's political ambition. From this point, burning becomes the standard execution method for heretics, and fodder for a million bad "when the Church ruled it was called the Dark Ages" takes. No time for that right now, though.

In the following few decades we hear more accounts of heretics being unmasked and executed. Then, in the 1050s, they stop as the Church enters the so-called "Gregorian reform," which suggests all sorts of interesting things (had I finished my PhD, this is the sandbox 'd have been playing in). Then around 1100 the accounts resume and by the end of the twelfth century the Cathars were around (or maybe not) and on and on.

R.I. Moore pegs this as the time Europe became a "Persecuting Society," when ruling elites used persecution as a tool against potential rivals, creating out-groups (heretics, Jews, lepers, witches, prostitutes, etc) and subjecting them to various types of segregation and degradation. Glimpses of the future are possible.

It's hard NOT to see the decree of the Fourth Lateran Council in 1215 that Jews identify themselves by some kind of special dress, in some places a patch shaped like the Eucharistic wafer, as a forerunner of the Star of David patch forced on Jewish people in the Third Reich, as well as of the atrocities that followed. The categorizing impulse plays out in limpieza de sangre rules concerning Jewish and Muslim ancestry during the Reconquista, which provides a theoretical basis for the creation of race as we think of it and so on.

All of this is in the future, mind you, but the .impulse is there and if we think of those long-term effects as ripples spreading across a pond, then maybe the events at Orléans are the pebble. Or maybe not.

Still, for me, it's impossible not to think of them right now. I thought of them all throughout the 2016 campaign, and the persecutory rhetoric and incitements to violence Donald Trump hurled at Mexicans or at Syrian refugees, or at Muslims in general. I could go on. And, of course, in the treatment of the innocents. Jakelin Caal Makin and the and the 8-year-old Guatemalan boy who died in our custody (abolish ICE, y'all...it's a descendant of the Inquisition) are innocents sacrificed on the altar of Trump's ambition. As are the thousands separated from their parents and imprisoned at camps in states along the border. I'm not the first to make the Herod connection in this regard.

In this Christmas season, the comparison is frequently drawn to the family of Jesus fleeing for their lives in Egypt and to the unnamed thousands fleeing violence and poverty in Latin America. Often these get caught up in pedantry over who was and was not subject to Rome during the time of Herod, but these arguments deliberately obscure more than they illuminate.

I guess the other takeaway is that this fight is never over for those of us who prize pluralism and diversity. This is at least a thousand-year-old struggle. It's seen peaks and valleys, the battleground has shifted, but the battle is the same. There are people who will sacrifice the innocent for their own power and aggrandizement, as we see in the current contest over the wall Trump wants built along the Mexican border and the accompanying government shutdown. The lesson of the Gospel, regardless of whether you are a believer, is that power can be overcome. It can be overcome today, as well, but only if we choose not to surrender to it.

The heretics of Orléans were offered the choice to renounce their beliefs. According to the account of Aréfast, two among them did. The rest willingly chose the flames. I'm not advocating for self-immolation, only that we look to their example. Perhaps on that feast day of the Holy Innocents, they saw themselves in that story, with Robert playing the part of Herod. In choosing the flames, they chose to continue the battle for their truth. 

If nothing else, their resolution in the face of overwhelming repression calls us to do better as we face the oppression of our own times, and as we seek to act on behalf of others who need our help, so that no innocent need die to serve another’s purposes.

"Something There Is That Doesn't Love a Wall:" Lessons from Berlin

Struggling to find my way to Museum Island, I crossed an invisible boundary several times before I noticed the marker, a subtle groove a less than a foot across and about an inch deep in the brickwork at Potsdammer Platz, and a plaque with the simple but freighted engraving:

Across Pottsdammer Street, I could see sections of the wall, concrete barriers little more than twelve feet tall that had stood marking the barrier between the freedom of West Berlin and the oppression of East Berlin, a barrier which, when I was a high-schooler, seemed permanent and near-impermeable, but which collapsed the year after I graduated.

Germans, ordinary people, took down the wall, but left its mark on the landscape as a reminder. In one direction lay the Memorial to the Murdered Jews of Europe and the Brandenburg Gate. In the other you could follow the path of the Wall, as bricks embedded in the sidewalk or the roadway, to the kitsch of Checkpoint Charlie, along the way seeing the surreal spectacle of cars parked half in West Berlin, half in East, or places where a building stood astride the Wall's footprint and the bricks dead-ended, only to resume on the other side. 

 

There’s been a lot of talk about walls lately. Most, of course, surrounds President Trump’s much-longed-for barrier along the border with Mexico. I thought about that wall when I was in Berlin just as I’m thinking about the Berlin Wall now, and about the ultimate futility of walls.

A Mexican wall, we are told, will protect us against the hordes of illegal immigrants who come and sap the economic vitality of the country. It is not my plan to argue that, except to say that I find compelling the evidence that they are net contributors to American society and that, even if they weren't there is a clear moral case for allowing them to stay, especially those coming from countries facing turmoil caused, in large part, by American activities.

Some, when pressed, will bring up the old adage, "Good fences make good neighbors," as if the fact that it is a truism means that it's true. Robert Frost addressed this in his poem "Mending Wall," when he wrote,

              "Before I built a wall I'd ask to know

              What I was walling in or walling out,

              And to whom I was like to give offense.

              Something there is that doesn't love a wall,

              That wants it down."

In Berlin, the answer was simple" the Soviet-controlled government of the German Democratic Republic was walling in eastern Germans who wanted to emigrate in search of some dreamt-of liberty and opportunity. Along the southern border of the United States, supporters of the wall want to keep out immigrants who seek the refuge of America for the same reasons. In both cases the answer of whom the builders are like to give offense is the same: each wall represents an offense to the world, to everyone who values liberty and opportunity.

Of course there are differences. Most importantly, the Berlin Wall effectively made East Berlin into a prison, something I don't think is intended by the Mexican Wall. To those walled in, or out, though, the difference may seem purely academic.

But there's also an important similarity, and it comes down to the reason we build walls. Or fences. We build them to demarcate our property, and to defend them from incursion.

Qin Shi Huang, the third-century B.C.E. Chinese emperor who directed the construction of the first Great Wall, ordered defenses against the growing might of the Xiongnu confederation to the north. This was a present threat; within a decade of Qin Shi Huang's death, the Xiongnu almost overthrew the first Han emperor. Of course this raises the question of how effective walls are against invaders. We might also consider France's Maginot Line in this vein. Walls are imposing, but a determined foe can always find a way to circumvent them.

During the second century of the Common Era the Roman emperor Hadrian, and his successor Antoninus Pius had walls built across Great Britain in northern England and Scotland, respectively. Each of these walls was less about defense--the Picts to the north were hardly the existential threat to the Romans that the Xiongnu were to the Chinese--than about displaying imperial power, and its limits, by marking those limits.

However, both of these walls can be construed as being built against an actual enemy. Berlin's wall wasn't built against an enemy, at least not an external one; no one truly threatened to invade the east through Berlin. No one now is threatening to invade the United States, despite the strident warnings of a massive migrant caravan that flared up just before the election and mysteriously vanished just as it ended.

No. The intent of each wall, the actual historical wall and the proposed future wall, is the same: to prevent people from going to a place where they believe they can build a better life for themselves and their families. Supporters can harumph about policy and illegal versus legal immigration, as though the legal is a marker of the moral (the GDR was within its legal rights to keep East Germans within its boundaries) and as though those legal constraints are fixed constants of the universe. 

Laws, though, are made by actual human beings, and they can be unmade as well, or changed for better or worse, just as the laws that prohibited the movement of Germans between the two parts of their country were made and then unmade.

What cannot be made or unmade, though, is the desire of people to move to where their lives will be better, and the will to do so whatever the risk. Indeed, this desire and this will represent everything patriots claim makes America great.

A wall athwart that is a wall doomed to fail. Whatever it is that doesn't love a wall will see to that.

A Modest Proposal for Silent Sam

November 15 is coming fast upon us and, with it, the reveal from Chapel Hill of fate of the monument to treason known as “Silent Sam.” You remember, the one toppled by protesters back in August?

Expect, perhaps, half of those with an interest to be happy in whatever solution comes as Chancellor Folt tries to balance various interest groups, including those within the board of trustees who appear to be quite open Confederate apologists.  She is doubtless hearing from everyone at this point, so what difference could it possibly make for me to offer my humble suggestion:

Drop it into the Atlantic Ocean.

Hear me out. I know it won’t please everyone. Revanchist neo-Confederates in the League of the South, the Sons of Confederate Veterans, and the United Daughters of the Confederacy will no doubt scream bloody murder. Or rebellion. Or whatever it is they scream. Ignore them, they mean no good.

Drop it into the Atlantic Ocean.

Hell, drop all of them into the Atlantic Ocean. Start with the monuments on UNION square: the Soldiers and Sailors Monument? Sink the statuary and demolish the pedestal. The monument to Confederate women? Sink it. The Henry Lawson Monument? Sure, it was designed by Gutzon Borglum, who also did Mount Rushmore, but he was also the original sculptor hired for Stone Mountain, and a member of the Ku Klux Klan. Sink it. Throw in the monument to the “Heroic Defender of Fort Wagner” who defended the blood and soil of the South against the African-American troops of the 54^th Massachusetts.

While we’re at it, how about the monument to Governor Aycock? Sure, he wasn’t in the Civil War, but he was a prime instigator of the Wilmington Insurrection in 1898. For my money, you could dump the monument to Presidents Jackson, Polk, and Johnson. After all, they didn’t identify as being from North Carolina. Plus, garbage people.

I know, I know. Some of them belong in a museum. I’ve said as much before, but I changed my mind after witnessing too much distortion of the history over the last year. An exhibit with photographs, explaining how these monuments told a lie about the nobility the Confederacy, its treasonous founders, and the heroism of its cause, and how they were intended to remind everyone of the racial boundaries and that they would be enforced, will suffice.

Maybe we could replace all of this detritus of the Lost Cause with some monuments suitable to the state we want to be, beginning maybe with one to the thousand or so Tar Heels who died in the Union uniform during the Late Unpleasantness.

“But, my heritage!”

Yeah, screw that, too. My family has been in North Carolina since before it was North Carolina. I’m sure if I bothered to look I would find a few of my own family tree wore the gray. Or the butternut. It’s my heritage, too, only I’m not so proud of that part of it.

As to where they should be dropped, I have a suggestion for that, too.  Did you really think I wouldn’t?

Off the coast of North Carolina there are numerous wrecks. Among these are a small number of World War II wrecks, from the days when the Germans patrolled the area and it was known as “Torpedo Alley.” Three of these wrecks are U-Boats that are in shallow enough waters that they can be reached by recreational divers: the U-85, U-352 and U-701.

Drop the monuments near them. Combined, they can be a monument to the wages of oppressing minorities and the folly of fascism, American and German. What could be more fitting? After all, in developing their racial laws, the Nazis were keen students of American history. They found in the racial laws of the South, and in our racist national immigration policy, some good lessons for building their own racist regime. Their main critique was that the “one-drop rule” was too harsh for use in Germany.

Did you catch that? The Nazis thought an American racial rule was too much.

And the monuments to the Confederacy were part of policing the boundaries, enforcing that rule that the greatest criminals of the 20th century found too stringent.

So, throw put them together. The U-boat wrecks are poignant, and the monuments in the deep will be, too. Like the U-boats, they will become encrusted with marine life, reefs providing a home for our soft corals, for marine invertebrates, a feeding ground for fish.

Over time, their original nature would be obscured by the life burgeoning on them and they would, finally, be good for something, and truly beautiful.

A Hidden Red Sox Tradition: Of Books and Boston, Baseball and Bazemores

My father has told me more than once the story of how he became a Detroit Tigers fan.  When he was eight or so, which would make this about 1957, his father asked him and his brother a momentous question: what is your favorite baseball team? Now my father had an answer at the ready. This boy bore an important legacy, that of the middle name his father passed on to him and, naturally, he loved his father. He listened to baseball games with Grandpa Roy (no, we aren’t the Hobbeses), and knew with the knowledge that he breathed that his father’s favorite team was the Boston Red Sox and that, as naturally as he loved his father, that they were his team, too.

However, my father was the second son in his family. His brother David had entered the world two years before him, and it fell to David to answer the question first. I have never known Uncle David well enough to gauge his passion for sports, though from what little I can recollect across the decades since I last saw him sports seemed far from his mind. I can’t assess hislove of baseball, so I can’t say whether he chose the Red Sox out of love of the team, love of baseball, or a desire to please his father. Whatever the case, he chose the Red Sox.

This left my father in something of a pinch for he, certainly, loved the Red Sox and he, certainly, wanted to please his father. But, as yet offstage, was another figure in this drama. My grandmother, who loved the Detroit Tigers as much as her husband loved the Boston Red Sox, was waiting for the answers, too. Torn between the options of further pleasing his father and leaving his mother bereft of allies, my father chose the Tigers.

And as far as I could tell, well into adulthood, my father was a Tigers fan. He was thrilled when they won the World Series in 1984. He watched them on T.V. whenever he could, a much dicier proposition in the days before 24-hour sports coverage. Inasmuch as he wore sports logos, Detroit is the only one I remember seeing when I was young. Sure, he flirted with the Atlanta Braves in the ‘90s—but who didn’t, what with their entire season being broadcast nationwide on the Turner Broadcast System, and fielding some damn fine teams in that stretch of five appearances in the Fall Classic across the decade? His baseball heart, always, was Detroit’s and Detroit’s alone.

Or so I thought.

Now, as I said, I never knew that the Red Sox were his first baseball love. I did, however, have some sense that my grandfather had been a fan. Nobody seems to know why the poor son of a poor tobacco farmer born in North Carolina in the first decade of the Twentieth Century was such a Boston partisan. Grandpa Roy died two years before I was born, when my father was nineteen. Still, sometime between 1909 and that day in 1957 or so, Roy had come to love the Red Sox and detest the “hated Yankees” with all the passion of the New England-born.

I like to imagine young Roy on the tobacco farm where he was raised, and from which he would flee in the 1930s, listening to games on the radio with his father. In my romantic imagination he listens, nine years old, when Babe Ruth pitched two games in the 1918 World Series and Boston defeated the Chicago Cubs four games to two, the last time the Sox would win the Series for eighty-six years (the Cubs, of course, wouldn’t win one for almost a century). 

Romantic twaddle. Major League baseball wasn’t first broadcast on radio until 1921, and didn’t become an important means of enjoying the game until well into the 30s. By the 60s it would be supplanted by television coverage even though in my opinion, if you can’t be at the game, radio is the best way to experience baseball.

When I pressed my father recently for insight into his father’s fandom, he said only that his father hated the Yankees and loved DiMaggio.  Dominic, of course, who played for the Red Sox from 1940 to 1953, and was the subject of the famous cheer, “Who is better than his brother Joe? Dominic DiMaggio!” This dates an important part of my father’s fandom to the period of Sox teams with the quartet of DiMaggio, Bobby Doerr, Johnny Pesky, and Ted Williams, the time of careers shortened by the call to service in wartime, of titanic struggles with the Yankees, and of near World Series misses. By then, though, Roy had moved to Detroit, where he would meet my grandmother and work in a gas station where he would meet one of the actors (no one seems sure which one) who played the Lone Ranger on the WXYZ radio show, and where my father and Uncle David were born.

            

If he became a fan in the 40s, but lived in Detroit, again we must ask how? Again, though, we must resign ourselves to not knowing. Say only that baseball is a mysterious beast that does with those who love it what it wills according to its own ineffable purpose.

I, by the way, was by no means a born fan of either baseball or the Red Sox. When I was young, if I sat down to watch a few innings with my father, it was not out of genuine interest, but to spend time with him, and out of the desire to please my father which seems to run in the family like some ersatz allele. My patience, though, had its limits and baseball was B-O-R-I-N-G.  Inasmuch as I cheered for a team it was for my father’s beloved Tigers. When my grandmother returned from one of her pilgrimages—they were literally pilgrimages, as sacred as if she had walked to Santiago de Compostella, or to a sage on a mountaintop—to the fabled realm of Detroit with a baseball “signed” by the World Series team, I was suitably impressed, until it quickly found its way into one junk drawer or another and vanished, so far as I know, from this universe.

I came to baseball as I came to everything in my life: through books. In 1985 I became a fan of the ABC-TV series Spenser: for Hire, and very soon after began devouring the novels by Robert B. Parker. Spenser was everything a certain type of teenage boy wanted to be: he was tough, smart, funny, dangerous, and good with the ladies. And he loved baseball. Parker’s third novel, Mortal Stakes, which centered around a conspiracy to force a Red Sox pitcher to throw games (and one of the bad guys was named Doerr…how am I only now realizing this?), brought this home, while simultaneously demonstrating that sport can be more than just a game. A professor of English, Parker was then in the habit of including in each book an epigram, a snippet of poetry, that linked to the story. This time, he quoted Robert Frost:

“Only when love and need are one,

And the work is play for mortal stakes,

Is the deed ever really done,

For heaven and the future’s sakes.”

Something in these lines spoke to me, speaks to me still, though I have never been a particular Frost fan.

Many years later I would impress my then-future wife, unbeknownst to me also a fan of this particular poem, with my recall of these lines. By that point it was more than just a snippet; Parker also made a better poetry reader of me. Our daughter, who will appear later, is an important reason I write this now.

In 1989, I saw the movie Field of Dreams, quite by accident, having gone to the second-run theater in Newport News, Virginia—where Roy lived from about 1951 until his death in 1969 and where my parents, who met there in around 1960, still live—to see some other movie that had apparently moved on. This moving, mystical story of baseball’s ability to bridge space and time, connecting fathers and sons across generations, led me to the work of W.P. Kinsella, and his worlds where baseball fields extend to infinity, where the dead can play again, where the winning of a pennant, by the Cubs naturally, can signal Armageddon, and where determined fans can, one square foot at a time, replace the Astroturf in the Kansas City Royals’ stadium with real sod during the strike-shortened season of 1981. There was heartbreak, too. How can there not in a game where the best fail two-thirds of the time, hoping with each swing to, as the title of Mark Kingwell’s recent book on why baseball matters exhorts us, borrowing from the playwright Samuel Beckett, fail better?  Try to read the story of love and loss with the improbably title “K-mart” in Kinsella’s collection Go the Distance without shedding at least one tear in the protagonists’ triumphant final inning together.

I recognized in myself a nascent fandom, springing from the works of Parker and Kinsella.

Flash forward now to 2013, the last time the Red Sox won the World Series. It’s October 30^th. Eight days earlier, I had celebrated my 42^nd birthday. Ten days before that, my only child was born, a beautiful little girl named Gabriella. She is nestled against me, unable to sleep, both of us bathed in the soft glow of the television as the Sox finish off the St. Louis Cardinals 6-1 to clinch their third championship (third!) in less than ten years. Tears flow as we share this moment that she will never remember and I will never forget.

In 1990 I read David Halberstam’s Summer of ’49. There, in the stories of mythic struggle between Ted Williams’ Red Sox and that other DiMaggio’s (the one Dominic was better than, according to the Red Sox faithful) New York Yankees, my fandom blossomed. Something about the character of those Beantown squads, especially the core of DiMaggio, Doerr, Pesky, and Williams, whom Halberstam would revisit late in their lives between the covers of The Teammates, appealed to me. Sure, Joltin’ Joe was amazing, godlike as he hit safely in 56 consecutive games, a feat the biologist and Yankee fan Stephen Jay Gould once referred to as the only bona-fide miracle in sports, but was The Splendid Splinter’s .406 season in 1941 any less majestic? Neither has been duplicated. It was the humanity of those players that drew me in, that made me a Red Sox fan for life. 

I can’t remember my father’s reaction, if indeed there was one, as I began openly supporting the Sox, occasionally wearing a hat, or watching a game. I was in college anyway, and even though I was a commuter student, our schedules diverged greatly.

It was probably in about 2003, the year my grandmother died and the year of heartbreak in the American League Championship Series, that my father spilled the beans. He told me the story of making a choice and how, despite about half a century of rooting for the Tigers and a short fling with the Braves, deep down he had always loved the Red Sox. They were his father’s team, after all, and though they had had their differences towards the end, the abiding love and respect my father had for his father spilled out in every word.

How is this possible? It was as if I had come to my fandom not through the slow accumulation of knowledge and burgeoning affection, but through genetic inheritance. This would make sense were we from New England, or New York, or Dallas, or from dozens of other places; love of team would be the air that we breathed. However my grandfather, raised in Bertie County, North Carolina, came to it, he instilled it, at best, inadvertently in my father. I came to it barely, if at all, aware of my grandfather’s interest and, devoid of any personal connection with the figure that now looms so large in this personal story, and knowing nothing of my father’s crypto-fandom nurtured in the secret chambers of his heart.

Did I mention that baseball is a mysterious beast that does with those who love it what it wills according to its own ineffable purpose?

And now, as the Red Sox contend for another shot at another World Series crown, I wonder if my daughter will inherit it, or if it stops here along with the middle name Roy, my father Michael, and I, share. Perhaps her mother, stalwart San Francisco Giants fan, has other plans. But at this moment, in these moments, I feel connected across the years, through the love of a game, however it came to me, and of a team. It makes no sense at all, but it’s true, and that’s all there is to it.

Thoughts on the Retirement of Anthony Kennedy

Anthony Kennedy’s retirement this week is the worst possible thing that could happen to the Supreme Court if you are a liberal.  Though he was certainly a conservative justice Kennedy was, since the retirement of Sandra Day O’Connor, the key vote in a number of decisions on the Roberts court that went the way progressives would have wanted.  On abortion, gay rights, environmental regulations, and any number of other topics, Kennedy was able to join with the Court’s four liberal justices.  Here are some sort-of-random thoughts on Kennedy’s retirement.

1.  He will be replaced before the elections this November.  McConnell’s declaration about not confirming Supreme Court justices before elections was just hot air to begin with.  Unless two Republicans grow a conscience, and nothing about this Senate GOP class inspires any confidence of this, Trump will nominate and the Senator will rubber-stamp.  Democrats can complain.  They can refuse to participate.  But the reality is that they have NO power in this situation and voters need to realize this.
2. The new justice will be young.  A lot of people are talking about Mike Lee, Senator of Indiana.  At 47, he could potentially serve as justice 40 years, influencing American life in ways that will surely run counter to the desires of a majority of American citizens.
3. Kennedy’s replacement means a solid 5-4 conservative majority.  As we’ve seen in recent weeks, Kennedy was able to join the conservatives on “religious liberty” (anti-gay) issues, anti-union issues, and affirming the president’s travel ban.  The new justice will likely be an ideologue in a way that Kennedy is not.
4.  Roe v. Wade is dead.  Abortion will return exclusively to the control of the states.  In many states, there are trigger laws on the books that will make abortion illegal in the event Roe is overturned.
5. State elections in the next few years are more important than ever.  Republicans have been playing the long game, controlling 28 state legislatures entirely.  If the right to choose, among other rights, is to be kept alive in the states, Democrats have to contest every seat and, more importantly, find a way to win.
6. Winning state elections in red states means overcoming gerrymandering.  Republicans have been very good at drawing seats to partisan advantage.  Even with Kennedy, the Supreme Court hasn’t been much help and I can’t imagine a Trump nominee having any sympathy at all for those effectively disenfranchised by gerrymandering.  The Census is coming up, and this means shifts in the number of representatives by state.  But reapportionment (as we here in North Carolina can attest) doesn’t just have to happen following enumeration.  Democratic loss at state levels will probably lead to a greater emphasis on drawing districts to partisan advantage, with zero chance for relief at the High Court.
7. Equal representation is not in the Constitution.  All Article One states is that representatives are apportioned to the States based on population; it does not provide guidance on how districts should be drawn.  There is a body of case law, most famously Baker v. Carr and Reynolds v. Sims that establish the principle of “one person, one vote” in drawing up districts for the House and for state legislatures.  These cases arose to challenge districts drawn to maximize rural (read: white) voting power against urban (read: minority) voting power.  Any court decision can be overturned; all that’s needed is five justices willing to overturn it and we can add uneven districts to the undemocratic advantages of rural voters.
8. Eliminating “one person, one vote” will probably seem attractive.  Republicans have effectively given up on courting African American and Hispanic voters, tying their destiny to white people, who are in demographic decline, embracing white supremacy as a guiding principle.  Redrawing districts, eliminating the requirement of equal representation, voter ID laws, voter roll purges, and removing felons from the voting rolls are all tools that can be used to dilute the power of urban and minority voters.  Got a problem with it? Take it to the Supreme Court.  Oh, wait, you won’t be able to, because the conservative majority won’t give a damn.
9. While we’re at it, let’s talk about your rights as a citizen in general.  There are really no such things as “rights.”  There are only courtesies we extend as citizens to one another that have the force of law.  The Constitution doesn’t determine what those are, much though we might like to believe the contrary.  Our rights exist only inasmuch as five justices on the Supreme Court are willing to say they exist.  Everything is up for grabs.
10. Did I mention state elections?  They are now more important than ever.  A Trump appointee means that the federal government can no longer be counted on to be the bulwark of individual liberty.  That burden now falls to the states and history does not inspire optimism. 

Of course, everything could change if Trump were impeached.  But Trump isn’t going to be impeached, for reasons I’ve laid out elsewhere.  In short impeachment is a political process; “high crimes and misdemeanors” are exactly what a majority of the House and two-thirds of the Senate say they are.  Even if Democrats capture both houses in the fall, the best they can do is bring charges against Trump.  They cannot get enough seats in the Senate to remove him from office.  So if you’re waiting for Robert Mueller to ride to our rescue, cut it out.  The only way we pull back from the abyss is to vote for Democrats, even Democrats you’re not totally on board with.  Because Trump could get more appointments, and Ruth Bader Ginsburg is 85 years old.