Monday, July 23, 2018

Your Rights, If You Can Keep Them Part II-On 3Quarks

by Michael Liss

The other shoe dropped.  
Anthony Kennedy’s idiosyncratic role as a Justice of the United State Supreme Court will come to an end a mere week from now. A lot of things are going to change.
Let’s start with the politics. Kennedy’s leaving cinches the conservative revolution (or counter-revolution) for at least a generation. For the first time in living memory, a conservative Supreme Court will be in position to review and bless the acts of a like-minded Congress and President.
This will occur regardless of who is confirmed (Trump’s list is one to which moderates need not apply), but, unless a bolt of lightning strikes, it’s going to be Brett Kavanaugh. Yes, there will be plenty of Kabuki before he gets measured for a new robe, but Kavanaugh is the one who rings every bell for both Republicans and Trump. He’s a Federalist Society member, reliably conservative on all the big issues, not afraid to advance his interpretation of the law even when it conflicts with precedent, and has a past history of partisan politics. His nomination even offers a prize in the Cracker Jack box—the unique, magnificent straddle of having worked aggressively for Ken Starr, but now being deeply committed to the idea that sitting Presidents should be immune from prosecution.
Don’t Democrats have something to say about this? Of course not. Filibusters are dead, following an idiotic series of one-upmanship games between Harry Reid and Mitch McConnell. So, pay no attention to the hand-waving, heavily-accented man from Queens in the donkey suit. Chuck Schumer knows Kavanaugh (or someone just like Kavanaugh) is going to be confirmed, and he knows the confirmation battle is both a risk, and an opportunity, that he has to navigate carefully.

First, Schumer has to let the activists in the Democratic Party vent. There is an unhealed wound from McConnell’s brilliantly evil stonewalling of the Merrick Garland nomination that needs a little more sunlight. Second, he needs to worry about the size of his own caucus in 2019. Everyone knows that there are 10 Democratic Senators up for reelection in states that voted Trump—several of those races are likely to be cliff-hangers at best. If I had to bet, the Democrats will have a net loss of at least three seats, and it could be significantly worse. Third is more existential. Schumer also has to worry about 2020, as a loss there will basically end the two-party system. Several Democratic Senators, including Elizabeth Warren, Kamala Harris (who is actually on the Judiciary Committee), Kirsten Gillibrand, and, of course, Bernie, are likely to look to use the proceedings as a showcase. That’s fine—there is no particular reason to get in the way of them, if they focus on issues people care about. But the Trump reelection team (including affiliated media) will be thrilled beyond all measure if the main Democratic contenders use the hearings as a rerun of Hillary’s 2016 campaign, which lacked ideas and often devolved into identity politics. No one beats Trump at identity politics. 

How does Schumer deal with this stew? By accepting reality (which I suspect he already has). First, do the math. There is no way Lisa Murkowski and Susan Collins will be the votes to kill Kavanaugh’s nomination. We know this because they already are making cooing noises, notwithstanding their expressed concerns about SCOTUS overturning Roe v. Wade. We also know it for another reason. They can do the same math. There are 49 yes votes right now (assuming McCain votes) without them. One more makes 50, and Pence breaks the tie. Neither of them wants to force McCain to come to Washington. And neither wants to take responsibility for killing this nomination—what’s the point when Trump will just follow up with the next Roe opponent? A lot of people look to Murkowski and Collins to be independent/mavericks, but a closer examination of their voting records doesn’t really support that. Rarely do they use the leverage one would assume they have. Both have a few issues where they will break from party orthodoxy, but, almost all of the time, those are “safe” votes—ones that don’t swing the results. McConnell is smart enough to know that, not to press them to take the hard ones except when absolutely necessary, and not to jeopardize their standing at home.

Schumer is just as smart (and remember he’s the guy who, in 2012, recruited many of the now-endangered Democratic Senators from some of those unlikely Red and Purple States). He also knows his New Yawk accent and mug is just as easy a target as Nancy Pelosi’s well-groomed coastal elitist granny look. It’s not going to sell well in places like West Virginia (Joe Manchin), Montana (Jon Tester), North Dakota (Heidi Heitkamp) or Indiana, (Joe Donnelly). That’s actually a plus, because those folks can show their independence and adherence to local values of community, fair play, and moderation by voting for the “qualified” nominee. Schumer is not twisting their arms in a lost cause—rather, he’s privately going to give them the thumbs up to use him as a foil. And they already are. Manchin just said Schumer “can kiss my ____,” and I seriously doubt it didn’t get a secret grin from the Minority Leader.

So, if it’s already over but for the speechifying and play-acting, what does this really mean to most Americans? On many things, practically nothing. The majority of SCOTUS decisions are actually unanimous. Only about a sixth are 5-4 or 5-3. Of course, the close ones have often been the intensely controversial ones—the ones in which we, and activists on both sides, are most interested. So, let’s talk about how swapping out Justice Kennedy for Justice Kavanaugh changes things, with the given that hard-core conservatives are positively swooning with ecstasy at the opportunity.

Three things to keep in mind:

First, Justice Kennedy wasn’t the centrist on the Court, he was the Median. The Median has now moved to Chief Justice Roberts, and he is substantially more conservative than the already conservative Kennedy. But if Kennedy was basically conservative, meaning aligned with Thomas, Alito, Gorsuch, and Roberts on all virtually all close votes, which he was, particularly in the Term that just concluded, does it really matter? The short answer…it matters, a lot, and for two major reasons: what I’ll call the Obscure Structural One, and the Practical One.

Let’s start with Obscure. Not every case “goes all the way to the Supreme Court.” Rather, except in the comparatively rare “Original Jurisdiction” matters, SCOTUS chooses what cases to hear by “granting certiorari” to consider appeals from lower court rulings. Granting cert must be done on the votes of four Justices, and, beyond matters that may simply not merit their attention, sometimes the granting of cert is tactical: They don’t want to disturb the lower court rulings on potentially controversial issues because they don’t think the time is ripe to reconsider, or because they have uncertainty as to the result (and therefore don’t want to reaffirm or set a precedent). But if they thought they could convince a fifth (let’s say, our new “Median,” Roberts) they might. Granting cert can be a big deal—it means there is a potential that SCOTUS might make a major, controversial ruling, either making new law, or overturning existing precedent.

Now, the Practical One: The farther the Median moves towards one pole or the other, the broader the potential rulings. If we assume Kennedy was more centrist, then the two ideological sides had to “bid” for his favor—and this coalition-building is far more important than many people realize. The public looks for binary rulings—yes or no—but many Supreme Court decisions reach yes or no in a manner reflecting a preference for “Judicial Restraint”—seeking narrow grounds, and, respecting existing precedent as much as possible. Go too far, and you risk the fifth vote leaving the coalition. This doesn’t stop individual Justices from joining in the Decision and then indulging themselves in a Concurrence (Justice Thomas, for example, has suggested that the Establishment Clause does not apply to the States), but the core ruling of the Court is a function of the maximum the deciding vote(s) can accept. If Roberts is the new Median, and Roberts is more conservative than Kennedy, those 5-4 votes will now tend to be more conservative, in the sense that they will go further because the extremely conservative Justices will have to “give” less to Roberts.

This is a problem, and more than just for centrists and liberals. An unrestrained Court can be a dangerous one, both to the country and to its own legitimacy. This is particularly true when it indulges a preference for self-defined truths as a justification for significantly exceeding what the public wants. The more liberal Warren Court lost some of the public’s confidence with a string of criminal procedure cases. The Roberts Court may do the same, if, to use the Chief Justice’s analogy about being an umpire, it seems to make the call even before the ball is out of the pitcher’s hand.

As we move ever-harder Right, on the business/labor balance, on regulation, on voting rights and fair representation, on Executive Power, we are also coming to realize that true limited government conservatives barely exist anymore. They have been replaced by opportunistic conservatives who have no problem using the power of the State situationally to achieve political ends. SCOTUS, even if it were motivated that way, can’t do that on its own—SCOTUS doesn’t enact or execute laws, rather, it sets the ground rules for what can be enacted or executed. But, when what is left of the astringent, selective variant of limited-government judicial conservatism comes together with opportunistic political conservatism, you can get a maximalist result—one that can vastly outstrip where the public is or wants to go. So it will be with reproductive rights and, to an as-yet-undetermined extent, privacy rights, as well.

We don’t need a lot of granular legal analysis when SCOTUS decides to take down Roe v. Wade. The new majority clearly opposes reproductive rights, even as a substantial majority of the public supports access to abortion. But SCOTUS gets to make the rules, so Roe v. Wade is as good as gone. It won’t happen immediately—Justice Thomas will not go running out into the street on the First Monday in October looking for church bells to ring, but, after the process—a ripe case, the granting of cert, briefing and oral arguments, and then a decision, Roe will end, probably by June 2019.

This is as much a certainty as Trump tweeting in the early morning hours. What we don’t know is what logic the Opinion will adopt and how far it will go. Roe doesn’t exist without the Court’s recognition of a right of privacy emanating from a “penumbra” of enumerated (as in, “written down in the Constitution”) rights (Griswold v. Connecticut, an earlier contraception case, laid the groundwork). But a generalized right of privacy, the type that seems intuitive to most Americans, is anathema to many “Originalists” precisely for that reason—it may be intuitive, but that’s all it is. I suspect that at least two of the Justices, if given a blank slate, would happily discard most or all privacy rights, and one or two more might significantly limit their application. Is there a fifth (Roberts) to take a wrecking ball to the entire concept?

I am going to assume (and hope) not yet, and SCOTUS will limit itself to a surgical strike on abortion. What are the practical implications? After all, overturning Roe does not bar the procedure, it merely eliminates the Constitutional restraints on individual States in their ability to regulate, restrict, and criminalize abortions. Superficially, that sounds somewhat calming—a Tenth Amendment solution where the Bible Belt and uber-conservative states do their thing, and the rest of the country goes its own way.

Ah, not so fast. According to the Guttmacher Institute, 45 states have some restrictions on their books. Ten have what we could call legacy bans—statutes that predate the original Roe decision and were never formally repealed. Here are the 10: Alabama, Arizona, Arkansas, Mississippi, Oklahoma and West Virginia—all good conservative states where no one ever wants or needs an abortion—and (brace yourself) Massachusetts, Michigan, New Mexico, and Wisconsin. What’s the over-under on ambitious Attorney Generals and local District Attorneys who will be looking to make a name for themselves by trying to enforce laws that the general public didn’t even know existed?

If the last 18 months have shown anything, it’s just how effective Republicans have been in exercising strict and sweeping one-party government, even with narrow majorities. Does anyone doubt that, once the Supreme Court rules that reproductive rights no longer exist, Paul Ryan’s successor (assuming the GOP retains the House) and Mitch McConnell will quickly roll out federally preemptive legislation with severe limitations or even a nationwide ban? Any doubts that the pressure on moderate Republicans would be intense to take one for the team, even at the potential cost of their seats? Any doubts our deeply religious President would sign it, if it could make its way through Congress, and direct Jeff Sessions to do whatever it took to enforce it before enactment?

In a painful and even perverse way, the post-Roe-repeal trench warfare may actually do some good. It will bring focus to the bigger question: What other liberties will draw the unfriendly attention of “limited government” conservatives as they look to terraform a nation more to their liking?

The next battle about rights is perhaps the ultimate one: Who really owns your life? What should be subject to unbridled scrutiny and regulation, and what should really be private, yours to keep or voluntarily cede, as you choose, to be invaded only under very limited circumstances?

Let me end with one deeply conservative idea: the more power the government has to regulate your life and the lives of your fellow citizens—even if you agree with a particular application of that power—the less liberty, you, as an individual, retain.

That is why you should always vote as if your rights depended on it. Because they will.

The original of Your Rights, If You Can Keep Them Part II first appeared on on July 23, 2018

And please follow us on Twitter at

Monday, June 25, 2018

Your Rights, If You Can Keep Them--On 3Quarks

Let’s talk about bullets and ballots.  
First, a thought experiment. Your son is about to become a father for the first time, and you want to get him something special. You have great memories of taking him hunting when he was a boy. So you go to a local gun show, and, at a booth manned by an old friend, you see a real beauty. He’s about to ring you up when something flashes on his screen.

“I can’t sell this to you…it looks like you haven’t bought a gun in at least six years.” He calls over someone official-looking; a long discussion ensues, including a certain amount of hand-waving, but the result is the same. No sale. Several years ago, your State Legislature, concerned about people getting their permits in-state and then moving elsewhere, had sent out postcards to those permit-holders who hadn’t bought a gun in the previous two years to make sure they still resided in the state. You could have responded to the instructions on the postcard, or simply bought a new gun from a licensed dealer in the four years that followed. But you didn’t—in fact, you don’t even remember getting the postcard, much less hearing that not returning it could be a problem.

Tough luck, especially when Democrats took back both the State House and control of the State Legislature. The dealer explained to you that you hadn’t lost your Second Amendment rights—no one was going to touch the guns you already owned or stop you from carrying or hunting—but until you updated your paperwork, the State assumed you had moved and the dealer was prohibited from selling something new to you. He was incredibly apologetic; your boys had played Little League baseball together; he’d even worked for your Dad when he was in high school; so there was absolutely no doubt in his mind that you were who you said you were, and lived where you said you lived, but the law was the law.  On this one day, not forever, but this day, you couldn’t purchase that particular gun. He’d put it aside for you, and, as soon as you got off the “No Buy” list, you could have it.

Outraged, you went home and tried to figure out a way to expedite things. Turns out that the Governor had sharply reduced the number of places you could file your documentation (he called it “reforming government”), and you lived over 50 miles away from the nearest one.  Also, they cut back the hours at those offices and made them weekdays only, which meant taking a day off from work. And the proof they required was a bear. Birth certificates and Social Security cards might not be enough. Even voting in the same polling place, which you had faithfully done for 30 years, didn’t work. Taking heed of Republican complaints of widespread voter fraud, the policy was to exclude voting records as evidence of residence.

By now, you are fuming.  You call your local state legislator, and a sympathetic aide tells you that, unfortunately, those are the new rules.  And likely those rules aren’t going to be changing soon, because, while the State was Purple-ish, after the Democrats rammed through a redistricting, the GOP would be lucky if they could hold on to even 40% of the seats. The Assemblyman wouldn’t be running for re-election, since he had been gerrymandered into a new district.  

Sounds absurd?  It is absurd–no chance they would treat the Second Amendment that way.  But when you substitute voting for gun-buying, suddenly every single one of those fictional hurdles I made you go over has been used, successfully, to restrict the exercise of the Fifteenth, Nineteenth, Twenty-Third, Twenty-Fourth and Twenty-Sixth Amendments.  

How can something that seems so basic to our Republic, a citizen’s right to choose his representatives, be so fragile?  We can start with the most significant Supreme Court decision affecting voting rights in decades, 2013’s Shelby County v. Holder—the Times-Square-sized neon sign blinking “Cheat Here” of modern voter suppression.

To make more sense of why Shelby has such a significant impact, we need a closer look.  Shelby was a challenge by Shelby County, Alabama, to the Voting Rights Act of 1965. The VRA was adopted as a response to unrelenting and pervasive attempts to limit minority participation at the polls. Through the interplay of three key portions of the Act, it banned discrimination on the basis of race (Section 2), set up “coverage formulas” that looked at raw vote totals and the relative success of minority candidates, identified areas as particularly prone to suppression (Section 4B), and then required those areas to get “pre-clearance” from the Justice Department to make changes to their voting procedures (Section 5).  Among those identified: eight Southern States (including Alabama), plus Alaska, assorted jurisdictions in California, Michigan and North Dakota, and five sites in New York City. Shelby County wanted out, and it had sued to get out. 

Conservatives have hated the VRA from its inception. I know, to an observer of contemporary American politics, this seems almost self-evident, but that’s unfair. There is a solid intellectual argument to be made that the law (not necessarily conduct, but the law) should always be racially neutral. In practice, this can seem to be contradictory—to claim you are against discrimination, but then disavow the means to combat it when it actually occurs. That being said, you can respect the consistent application of a principle (opposing all preferences regardless of whom they benefit) when it is consistently applied. There are plenty of principled conservatives out there.

As Shelby wended its way through the lower courts, many of the VRA’s opponents, knowing that there were probably five votes for repeal, dreamed of a clean kill. But Shelby posed a particular challenge. Congress had reauthorized the VRA five times since its original enactment, the last time in 2006 by votes of 390-33 in the House, and 98-0 in the Senate. The legislative history associated with that reauthorization showed, in explicit detail, continuing and extensive discrimination. In light of that, while gutting Shelby might have been immensely satisfying, conservatives on the Court would have had to engage in an act of extraordinary Judicial Activism.  Justice Scalia essentially acknowledged this during oral argument, when, with some clearly evident picque, he opined that the only reason the VRA received such levels of Congressional support was because it “perpetuated a racial entitlement.” From Scalia’s perspective, those votes in Congress weren’t real—it was just that lawmakers were too intimidated to do what he would have done—vote against it. Think of it as his variation on the Goldwater slogan, “In your heart, you know he’s right.”  

Shelby demonstrates to me why Scalia could never have been Chief, because Scalia, for all his intellectual firepower, was a bomb-thrower. John Roberts, on the other hand, was perfect for the job. He’s every bit as smart as Scalia was, completely dedicated to the law, but also, when he needs to be, a sleek and silent assassin. It was Roberts who identified the key weakness in the government’s argument—the failure, since 1975, to update the coverage formulas.  He then stitched that together with increased levels of minority participation over the decades, and, in a superb piece of advocacy, asked one slightly misleading, but nevertheless crushing question to then-Solicitor General Verrilli, “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?”

Roberts knew Verrilli couldn’t possibly say yes, and, on that key point, the case was basically over. He had the five votes, and assigned himself the Opinion, invalidating the existing coverage designations in Section 4B, and, by extension, Section 5’s “pre-clearance” mechanism. The good Republicans of Shelby County were unleashed to indulge themselves. Roberts was careful enough to point out that discrimination was still prohibited by Section 2, and he even invited Congress to revisit the coverage issue, but he must have known that they were never going to agree on a new definition.  For all intents and purposes, Shelby buried the VRA by making it an empty, toothless vessel, and it was Roberts who did the embalming.

To absolutely no one’s surprise, once Shelby opened the door, more than 20 states with single-party governments rushed in to consolidate their hold on power.  I was at a conference on Latino voting rights in New York a few months ago and had a chance to talk to one of the speakers. What he said was that Shelby had been a complete game-changer on voting rights litigation—even when discriminatory intent was obvious. Without the need for preclearance, new and potentially discriminatory policies could be instituted immediately, and only challenged after the fact. Lost also was a roadmap for what the Justice Department would likely have disapproved.  The balance of power had swung dramatically away from excluded voters. It was anything goes now.

Where does this end? We might as well acknowledge the obvious: to a very large extent, the race of voters is less important than their prior voting patterns, so true discrimination is hard to prove unless it is absolutely overt. That is why the most effective suppression techniques are largely administrative. You don’t need to send the proverbial men with guns to certain polling places. You just reduce the number of those polling places, restrict early voting, shorten poll hours, purge voter rolls, and create new voter ID requirements, all in a manner that “coincidentally” knocks out more of their voters than yours. Ohio Republicans aren’t going to lose a moment’s sleep if they trade one night-nurse in Holmes County (4-1 Trump and one of the least minority places on Earth), for five in Cleveland or Cincinnati, which were both strongly pro-HRC.

And that’s just the kind of pure, partisan politics that John Roberts would prefer not to touch, but knows is inescapable.  Such was Shelby.  Such was the just-decided Husted v. A. Philip Randolph Institute (Opinion by Justice Alito) which embraced the postcard and two-strikes- you’re-out approach of Ohio’s Secretary of State (and Karl Rove helpmate) Jon Husted.  Such are the two gerrymandering cases, Gill v. Whitford and Benisek v. Lamone, both challenges to redistricting, which were remanded to lower courts on a standing issue (a very strong hint the conservative majority on the Court might have approved them), as well as a third, Abbott v. Perez, which was undecided as of this writing.  

But Roberts might as well be wishing away the humidity in a Washington summer—it ain’t going to happen, because cheating (and that’s what this is) works. Let me tell you what will happen. Voter suppression and partisan gerrymandering will intensify at all political levels, aided by big data and ever-more sophisticated and granular targeting techniques. Both sides will end up in an arms race—you cheat, you win, you cheat some more, and each win gives you the opportunity to go bigger the next time.  The real risk, though, isn’t that Blue States will get more Blue, or Red more Red. It’s that government will no longer be reflective of the electorate’s desires, or responsive to its wishes, because more and more citizens will be effectively locked out. And they will be angry about it. Both those things, in case you hadn’t noticed, are already occurring.

There has to be a limit, right? I strongly suspect that, whatever that limit is, it is going to be determined by a deeply reluctant John Roberts. Just as in Shelby, he’s going to be one of the five in the majority, and he’s going to assign the Opinion. At stake, along with fair voting, may also be the very legitimacy of the Court, as he himself defined it. He said, in his confirmation hearing: “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.”

I have a lot of respect for the Chief Justice. He is too conservative for my tastes, but I believe he’s a man of integrity. He’s got to realize that now is the time to stop ignoring the tricks of the trade, from sign-stealing to beanballs, to put on his black suit and mask, to get on the field, and to make sure everyone plays by the rules.

Michael Liss, June 25th, 2018

Your Rights, If You Can Keep Them appeared first on June 25th, 2018 in

Editor's Note:  Subsequent to publication, Justice Kennedy announced his retirement.  It's fair to assume the Court will now tilt much further Right, especially on anything related to voting rights, and gerrymandering. 

And join us on Twitter at

Wednesday, May 30, 2018

The Graduate Schools His Father-On

Celebrate with me. 

May is graduation month, and my children are among the graduates.  My son marched two weeks ago for his Masters, and, if you are reading this on Memorial Day, it might be at the very same time I watch my daughter receive her Bachelor of Music. Go get ‘em, kids.  

Perhaps your joy need not be vicarious—you have your own family skittering across the podium. One of the special pleasures of this time of year is that so many of your friends and relations are also submerged in a sea of caps and gowns, blurry pictures, hugs, and the dreaded Elgar Pomp and Circumstance Earworm. They announce themselves with each vibration from your iPhone, a kaleidoscope of happy, and occasionally goofy, images. Can we all stipulate that the whole outfit looks a bit silly?

Graduation also reminds you that time passes (way too fast). Your kids’ time, and your time. You’ve changed, just as has the five-year old who came bouncing out of her room, a huge grin on her face, ready for the first day of Kindergarten. You are a little older (just a little) and a little more “robust,” and your times in the Road Runners races are “moving” in the wrong direction.  

It doesn’t matter.  There are your children, not looking little at all, promising you a peculiar type of immortality. They are going to go do things, great things, going to change the world. They are the discoverers, the communicators, the creators. They will wash away any imperfections you’ve left and build things bigger and better. They really are the future.

You’ve celebrated with me. Now, indulge me.

I’m optimistic about the future, but there’s still the present, and the present is awfully noisy and challenging and pretty darn ugly.  Regardless of what side of the Trump chasm you inhabit, you have to acknowledge that we are sitting on a lava field a lot bigger than Hawaii’s. Blame whom you want, but volcanology should be a required course along with political science. And it’s our kids who have to traverse the heated landscape. Perhaps, before we inevitably become the burden on our children that we insist we never want to be, it’s incumbent on my generation to do something about it.  

Meaning no disrespect to our daughter, who is tied up with last minute packing, discarding, and whatever else college seniors want to do in those last few days (no need to probe), I asked our son what he (and his cohort) wanted from me and mine.  What follows is abbreviated from several hours of discussion.

I was floored by his first response, disarming in its simplicity, and a little damning in its implication. He wanted us to lead. Full stop.  His logic was impeccable. His generation is largely powerless. My generation is in charge. Even if every girl and boy in America could grow up to become President, they still can’t do it before they are 35.  Twenty-somethings can start new technology companies, discover tremendous advances in health and science and math, star in billion-dollar movie franchises, write immortal fiction, beguile us with great music, even literally lay their lives down for us, but, in our system, they can’t lead. Their time will come, but, for now, Baby-Boomers hold the keys to the castle. And we haven’t been using those keys, except maybe to raid the treasury.

At first I didn’t quite get his drift, suggesting that we could make political progress, maybe elect more centrists (as I’m a Democrat, someone like Mark Warner) who could then work across the aisle. If we could change the culture, we could together tackle the big issues. He waved it off. Warner would be fine, but Warner wouldn’t solve the problem. None of the Boomers could. My entire generation had demonstrated, over and over, that we couldn’t be trusted to end the petty bickering because we were the petty bickerers. So, stop pretending to make an effort that is clearly not genuine, forget the moral relativism, and start leading on issues that are really compelling. Leadership is about moving confidently without pandering, about leaving safe spaces to take risks commensurate with the stakes.  

Lead on what, I asked?

Lead on climate change. Conservatives mock the idea of climate change, but my son, who is no economic liberal by any description, takes it seriously, particularly as it relates to the huge social and economic costs of delaying action. There may be nuance between denial and being anti-environment, but that nuance is irrelevant if it results in inaction or willful vandalism. The world we despoil now will be the one he gets to live in later.

Lead on the deficit. It should be obvious to everyone, no matter where you come down on the tax cuts vs. government spending argument, that exploding deficits are being funded by borrowing that will inevitably have to be paid by him and his peers. As will Social Security and Medicare (something he and his cohort hold no hope of receiving themselves). As will the drain of the inevitable commitment of time, energy, and sheer pain of caring for older adults whose life spans may exceed their capacity to live them well. While we still have the energy and ability to choose another path, we Boomers can agree that we shouldn’t be takers—especially from our kids.  

Lead on the economy. Millennials need good jobs, with real prospects, in which they can take pride. Sure, some will fail, and many others will be on a low-salary treadmill, where they will always be dodging the next productivity-designed obsolescence.  But the slacker-kid-in-his-parents’-basement meme is this generation’s Cadillac-driving Welfare Queen—a strawman to raise resentment, so as to obscure not actually doing anything about structural problems. Millennials may not all be economic policy sophisticates, but they can see clearly that what is being done now doesn’t work. I’m going to insert one personal observation here. This is a trap for Democrats: solutions like guaranteed income leave my son and many of his peers wondering where the opportunities for finding and keeping meaningful work will come from. They would rather make it on their own—and, in his words, “the role of government should be less mandate and direct payment, and more convene and incentivize”.

Lead on international relations (which includes trade treaties). Trump may be an exemplar of what American Foreign Policy should not be, but what should it be?  What are our end goals? Do we care enough about democratic and humanitarian values to intercede when they may be threatened? When should we express military power? How much of the common defense should we be providing to our allies?  Is Isolationism wise when the Chinese are willing to engage everywhere, and, being a true dictatorship, can do so decisively and without regard to cost?

All great questions.  This would be about the time when Fred MacMurray would exhale, deliver to one or more of his Three Sons a sober, Dad-like “Well…,” and offer up some profundities. I didn’t—I’m not that smart.

That’s where our conversations ended, and it wasn’t until the following week that I realized I’d had a “curious case of the dog barking in the night” moment. What he hadn’t raised at all was any social issue—things like guns, gays, abortion, the role of religion. I knew he had strong opinions, and yet he didn’t prioritize them.  So, I texted him (how else would one communicate?) and got an intriguing response. Social issues would have to wait for his generation to resolve in a way that met their needs. They would be the ones to debate and resolve the core philosophical question of the scope of government in either supporting, interfering with, or mandating certain types of personal behavior before resolving the specifics. I wondered about the impact of waiting so long, but “the fundamental philosophical debate falls in the bucket, for me, of things I wouldn’t trust Baby-Boomers to do reasonably.” Yet, he’s optimistic.  “I believe our society is strong enough and malleable enough that there will always be a way forward on these issues in the future.”

Interesting to be told, in effect, that my generation lacks the capacity to act rationally when it comes to red-meat issues.  But he has left us with a full plate of other questions, and there are no easy answers to any of them. We are too large, too rich, too powerful, too indebted, too challenged around the world by other countries, too polarized and too swampy to go without some serious upheavals in crafting solutions. Given how inadequate both parties have been in actual governing, I suspect there will be a huge distance to travel, and we quite possibly won’t get far. But my generation ought to start, and Millennials need to keep us honest until they can pick up the mantle. They may not yet be able to lead, but they can vote, and make their needs clear. That’s my son’s challenge to me, and mine to him.

And that brings me back to graduations. I had said at the outset that, if you were reading this on Memorial Day, it might be at the very moment my daughter is getting her diploma. But if you are seeing this first on Tuesday, you will likely find us in the rented minivan, surrounded by crammed boxes and luggage and ripe laundry, somewhere between Ohio and New York.  And at some point, maybe around Snowshoe, Pennsylvania, there might be one or more sleeping graduates in the back seat.  It’s one of the first rules of parenting: You can always count on a moving car.

The Graduate Schools His Father appeared first on

Please follow us on twitter at: