A Serious Question of Competence



How Much Is Fair To Ask of Mediocre Lawmakers?


This is an article and a subject that I began to think about in the 1960’s with the realization that meaningful, in fact, momentous civil rights legislation was about to be passed.  What both surprised and worried me was the fact that the prominent Libertarian, Barry Goldwater vowed that he would vote against the proposed legislation.  Goldwater, billed as the the quintessential conservative, was much more accurately a libertarian with his “live and let live” attitude toward all sorts of minorities, immigrants and racial groups.  For him to disagree with the “Civil Rights Act, “ there must have been something to at least question about the law.  I’m quite sure, in fact, that if one were to ask Ron Paul or Bob Barr, current Libertarian voices, if they believed the “Civil Rights Act” to be necessary, they would answer “yes,” but if questioned regarding its constitutionality, they would sadly shake their heads “no.”  In fact, it seems somewhat questionable as to whether it is constitutional to force a private business to sell to certain individuals if it prefers not to.  Perhaps, it would have been more preferable to force these private business (as opposed to governmental) entities to deal with the entire public by denying them various public services like police and fire protection and many others should they choose not to deal with the entire public without whom these services would not exist?  In other words there may have been other, more Constitutional ways to pass desegregation laws affecting private businesses.  Unfortunately, our legislators were not quite competent or industrious enough to explore those options.  Perhaps, in all fairness and considering the exigence of the circumstances, it was too much to ask of them?  We need to remember the considerable courage that it took for these men and women to pass what was, perhaps, the most important legislation of their lifetime.


Later, as other rather mediocre legislative minds came up with the idea of bussing children for two hours or more every day to enable them to attend better schools, many teachers breathed a sigh of relief.  Fully realizing that it was they who should have been “bussed” to the inferior schools in dangerous neighborhoods, thereby dramatically improving those schools, they recognized the futility of poorly designed, often incompetent legislation.  Somehow, the message was lost: courage could no longer make up for competence.  Studies would have easily shown, for instance, that certain middle class groups, eg. Jews, usually moved, almost automatically into those neighborhoods with the very best schools.  In fact, in my hometown, for a time, the local Catholic school, the best in the area, boasted almost 30% Jewish enrollment.  Children don’t really learn a whole lot in a day in which they ride a bus for two to  three hours.



Confused Attempts at Campaign Finance Legislation


Only a few years ago, Senators McCain and Feingold authored a well meaning, but complicated and clearly unconstitutional campaign finance bill.  Neither Mr. McCain nor Mr. Feingold are Constitutional lawyers and apparently received little help from the slumbering and largely uncaring legal profession in fashioning their bill.  It introduced questionable first amendment restrictions on freedom of speech to corporations in their use of “soft money,” restrictions which did not apply to other groups.  They identified specific times when these corporations were or were not allowed to exhibit their “soft money” presentations making the issue even more complicated.  In fact, some aspects of the law were bound to be challenged and overturned even by an honest Supreme Court.  Obviously, the First Amendment does not discriminate against corporations or anyone else!  If apes could talk they would enjoy the same freedom of speech which Congress is clearly not allowed to abridge.  Unfortunately, an extremely political and corrupt group of judges chose to call huge political bribes expressions of speech.  They saw no difference between supporting a candidate with whom one agrees or changing his mind with thousands or even millions of dollars in bribes, bribes having nothing at all to do with soft money.


More recently, various well meaning left wing Democrats, in their eagerness to pass national healthcare reform, introduced the healthcare “mandate,” an honorable concept except for its possible violation of the questionably amended “Commerce Clause,” which would limit the mandate and a host of other privileges only to the states.  In “forgetting” to include an “opt out” clause for states who did not wish to participate, and not including some clever Republican ideas such as insurance “portability” across state lines, impatient and less than competent Democrats were begging for the objections now before the Supreme Court.  With some help from the hibernating legal profession, they might have introduced the idea that if a state chose to opt out of the national mandate, the state would have to assume the responsibility of healthcare for all of its inhabitants. This way, the argument that it is unfair to shift the burden of healthcare of the uninsured onto the backs of the insured would actually hold some water.  Again, more competent legislation, more thoroughly researched, would not only result in more sound laws, but would help prevent amoral, and in the case of Clarence Thomas’ well known graft, well financed decisions by a clearly corrupt Supreme Court.  The lesson, still unlearned by Democrats: courage and audacity can no longer make up for competence.



The Administrative Law Act:  Legislation Without Representation


The abysmal record of less than competent legislation was not always the fault of the legal profession’s inertia.  The modern dilemma apparently began with the “Great Depression” era Congress.  President Roosevelt proposed at the time, that his administration would introduce various executive acts to assist the overwhelmed legislators in passing the massive body of legislation needed to extricate the country from  financial disaster.  Later, he suggested, these “acts” could be voted into actual laws and the unnecessary ones voted down within five years.  Any acts not voted down would be considered as “passed unanimously.”  Of course, for the most part, the Congress never did “get around” to voting on these new “laws.”  Despite repeated and obviously legitimate arguments by the legal profession that this represented “legislation without representation,” the complaints fell on the deaf ears of a Supreme Court completely “stacked” by President Roosevelt with some of his most partisan friends.  The “Administrative Law Act” thus became one of the most counterproductive creations of the “Great Depression” by enabling the Supreme Court to use the excuse: “We know it’s unconstitutional, but we are allowing it for the good of the country.”  This has resulted in a whole host of absurd rulings from the validation of illegal butterfly ballots in Palm Beach to the violation of Florida state law in disallowing the mandatory recount in 2000 to forcing the payment of bonus money to criminal bankers.  It has led to the blatantly illegal passage of Medicare Part D in which Republicans called upon a lobby to write a law which deliberately deprives senior citizens of the constitutional right of equal protection guaranteed under the 14th Amendment.  Congress has blatantly stolen the agency’s right to negotiate prices using their multiple millions of members as leverage.



The Legal Profession:  Asleep On the Job


Legislators are clearly not getting any smarter or more competent.  While judges like Clarence Thomas and Antonin Scalia will continue to accept gratuities to cover their “vacation” expenses used to finance their speeches before various right wing groups,Thomas’s wife will continue to receive large payments for her right wing lobbying efforts.  Neither judge will recuse himself from a case no matter how gross his ethical violations might appear.  There remains only one group of people who have any influence over the integrity and accountability of our courts and our legislatures and that is the legal profession.  They have been curiously silent in recent years, exerting little or no influence on corrupt judges or attorneys in either party.  Their letters and even petitions, complaining about scores of political prosecutions at the hands of the Bush Administration as well as the worthless defense of these policies by the effete and equally corrupt Eric Holder may ease their consciences, but they are worthless.  Until the American Bar Association starts to threaten criminal judges and prosecutors with censure and even disbarment, there will be no justice in this country.  Until the legal profession demands constitutionality from legislators and the incompetent laws that they author, judges will continue to render absurd decisions, destroying all of the values and institutions that have made this country great.


Al Finkelstein,  3/27/12