How it happened: Procedural vote on Kavanaugh was critical
By LISA MASCARO, JILL COLVIN and ZEKE MILLER
Monday, October 8
WASHINGTON (AP) — Mitch McConnell walked onto the Senate floor for the big vote to save Brett Kavanaugh’s nomination with a secret: He didn’t know how it would turn out.
It wasn’t supposed to be like this. The Senate majority leader is often seen as a masterful tactician. But he was watching and waiting like the rest of the nation to see if his Republican senators would advance President Donald Trump’s pick for the Supreme Court. Without that vote on Friday, there would be no triumphant final roll call on Saturday.
Kavanaugh’s confirmation was always going to be difficult, but over the past few weeks it had veered terribly off course. Three women had accused the judge of sexual misconduct, bringing a #MeToo reckoning to Capitol Hill and transforming the nomination fight into a bitter dispute that pushed the polarization of the Senate to new extremes.
This account of how Republicans brought Kavanaugh back from the brink is based on roughly a dozen interviews with administration officials, senators, aides and others. Some asked for anonymity because they were not authorized to reveal details about private discussions.
The rescue campaign was as bold as the Democratic effort to stop Kavanaugh. It included long-distance arm twisting from a former president, a locker room-style pep talk that helped change the game and decisions made up to the last minute.
THE LOW POINT
The White House was near crisis mode, its lowest point, with dire calls flooding in about whether the president was going to pull the nomination. Republicans had just secured a deal with Christine Blasey Ford’s lawyers on ground rules for her testimony to the Judiciary Committee about her allegation that Kavanaugh assaulted her when they were teens. And now a new accuser, Deborah Ramirez, had come forward to claim Kavanaugh exposed himself to her when they were freshmen at Yale.
Republicans knew the hell that would befall them if they bailed out. But this was a moment when Trump’s ability to shape events was limited.
Jeff Flake, the Arizona Republican, was publicly wavering on Kavanaugh. And his party badly needed him back in the fold.
Flake had been central to the effort to slow voting and allow Ford a chance to testify. And Republican Sen. Susan Collins had been in constant contact with him. With Lisa Murkowski of Alaska, the trio had forced GOP leaders to give Ford a chance to tell her story.
Another Republican, Utah’s Sen. Mike Lee, gave Flake a call. The two had grown close on long flights to Washington and have a lot in common, including their Mormon faith.
But the president himself has never had much influence over the three senators. They are the most independent Republicans in the chamber, and Flake had been forced into early retirement for his criticism of Trump. With Trump on the sideline, White House Counsel Don McGahn became the White House’s liaison to the trio.
McGahn had talked to McConnell, the president and others, saying they had to come up with something to change the dynamic. From the well-staffed war room for the nomination on the White House campus and beyond, the consensus answer was simple: Kavanaugh had to tell his side of the story. He would do an interview on Fox News.
“We’re basically in a political campaign here,” said Scott Jennings, a longtime McConnell political consultant. “We have two candidates — the accuser and the accused.”
WHO IS THE REAL KAVANAUGH?
It was a painful interview, full of repetitive talking points and Kavanaugh’s sidelong glances at his wife.
The most memorable moment? Perhaps the 53 year-old judge giving a rambling account of his youthful virginity.
The performance rattled some in the West Wing, including the president, who told allies he was frustrated and concerned about how the judge would hold up before the Judiciary Committee.
The No. 2 Republican, Sen. John Cornyn of Texas, acknowledged “it’s extremely awkward to be talking about such private matters on TV.”
But some in the White House saw it as “game changing” play that served its purpose in denying the accusation and providing a video that could be played over and over again. It also hit a key demographic audience of slightly older Republican-leaning women whose views would be important come November.
Now Kavanaugh had to show the senators themselves — and the public — his human side. Not the Yale-educated judge, but the fire in the belly. He would soon have that opportunity at the Judiciary Committee hearing with Ford.
Her testimony came first, and it captivated the nation. Had the hearing ended there, some senators said, Kavanagh might not have had a chance. Trump called McConnell, concerned.
But McGahn cleared the side room where Kavanaugh was waiting with his wife. He told the judge this was no longer about judicial philosophy. He needed to be authentic. It was his time to speak, in his own words.
Kavanaugh got the message. He walked to the witness table, adjusted his nameplate and — alternating between angry outbursts and stifled sobs — told the committee he was innocent. He didn’t do the things the accusers said he did. And he was not going to let this destroy his life.
He’s crushing it, texted one staffer to another.
It was risky strategy that created a partisan Rorschach test. Democrats saw Kavanaugh as unhinged, hysterical, trafficking in Clinton conspiracy theory. Republicans were thrilled, seeing a counter-punch from a qualified nominee unjustly accused.
Trump called McConnell again, this time pleased. “Judge Kavanaugh showed America exactly why I nominated him,” Trump tweeted. “His testimony was powerful, honest, and riveting.”
But what the senators saw was something else. Collins, watching from her Capitol hide-a-way, had more questions. And for Murkowski, it was the moment that would begin to change her mind — against the nominee.
The phone rang the next day in the anteroom off the Judiciary Committee.
It was George W. Bush on the line.
The former president had been a big backer of Kavanaugh, the young lawyer who had worked for him as counsel and staff secretary at the White House. Bush was calling Flake, who had abruptly brought the hearing to a standstill.
They were supposed to be voting to send Kavanaugh’s nomination to the full Senate, but Flake was considering a delay to allow for an FBI investigation into the allegations of misconduct.
McConnell knew another delay could prove deadly. Tips were flying in to senators’ office, some of them anonymously, and Kavanaugh had been forced onto multiple calls with committee investigators to deny them.
The leader gathered Flake, Murkowski, Collins and others in his office. With his slim 51-49 seat majority, he had no choice but to meet the needs of the wavering Republicans. The plan was set for a one-week FBI investigation.
Then the days dragged on awaiting the agency’s report. One White House aide said it felt like the final days of a presidential campaign.
The White House view was that fellow senators would be more effective than Trump at persuading the wayward Republicans, and “buddies” were assigned to each of the swing votes to keep checking in with them.
And really, who could persuade Collins, Murkowski or Jeff Flake?
Collins is known for thinking long and hard about issues. Murkowski is as independent as her far-flung state of Alaska, after having won a write-in campaign for re-election that made her seem politically invincible. Flake is a loner of sorts who keeps his own counsel.
When the confidential FBI report arrived in the secure room on Capitol Hill, the three went together for a briefing.
Collins went back for a second read of the report. Flake stayed for three hours digging in. Lee was often by his side.
McConnell kept pushing forward, scheduling the vote for Friday to move forward on Kavanaugh even though he didn’t have the support locked in. He’s usually not one to bluff. But after having declared days earlier, “I’m confident we’re going to win,” he was more subdued the morning of the vote.
Collins tipped her hand, telling reporters on her way to the chamber she was a “yes.” Flake said in a statement he was ready to confirm Kavanaugh. But Murkowski whispered “no” when the clerk called her name.
From his West Wing office, Vice President Mike Pence watched the proceedings on television, poised to step in and break a tie, if needed. Pence’s staff began preparing the motorcade for him to travel to the Capitol.
But with no other Republican defecting, the vote had succeeded.
Flake left the Senate chamber without saying much. Collins later delivered a floor speech that was praised as required reading as she catalogued her reasoning and bemoaned a process that she said looked like a “caricature of a gutter-level political campaign.”
Murkowski delivered her own speech, saying that Kavanaugh’s testimony convinced her he didn’t have the temperament or the impartiality for the job.
The senators were tired. The Capitol cleared out, except for a few Democrats who kept up the argument all night.
Then came Saturday’s roll call. Dramatic and anticlimactic at the same time. McGahn, the White House counsel who’d given the nominee the Thursday pep talk, was in the front row of the gallery.
It was 50-48. The Kavanaugh campaign had won.
Associated Press writers Catherine Lucey and Ken Thomas contributed to this report.
More reporting on the Supreme Court and Kavanaugh can be found at: http://apne.ws/IHcZXad
McConnell says he’s open to Supreme Court nomination in 2020
By HOPE YEN
Monday, October 8
WASHINGTON (AP) — The Senate’s majority leader, insisting his chamber won’t be irreparably damaged by the bitter fight over new Supreme Court Justice Brett Kavanaugh, is signaling he’s willing to take up another high court nomination in the 2020 presidential election season should another vacancy arise.
“We’ll see if there is a vacancy in 2020,” said Sen. Mitch McConnell, R-Ky.
Heading into pivotal midterm elections, McConnell tried to distinguish between President Donald Trump’s nomination of Kavanaugh this year and his own decision not to have the GOP-run Senate consider President Barack Obama’s high court nominee, Merrick Garland, in 2016. McConnell called the current partisan divide a “low point,” but he blamed Democrats.
“The Senate’s not broken,” McConnell said. “We didn’t attack Merrick Garland’s background and try to destroy him.” He asserted that “we simply followed the tradition of America.”
While McConnell said Kavanaugh’s confirmation was a shining moment for the GOP, some Republicans weren’t so sure. GOP Gov. John Kasich of Ohio predicted “a good year” for Democrats in the November elections and said he wonders about “the soul of our country” in the long term after the tumultuous hearings.
“It could be a short-term win,” he said.
The climactic 50-48 roll call vote Saturday on Kavanaugh was the closest vote to confirm a justice since 1881. It capped a fight that seized the national conversation after claims emerged that Kavanaugh had sexually assaulted women three decades ago. Kavanaugh emphatically denied the allegations.
The accusations transformed the clash from a routine struggle over judicial ideology into an angry jumble of questions about victims’ rights and personal attacks on nominees.
Ultimately, every Democrat voted against Kavanaugh except for Sen. Joe Manchin of West Virginia.
Kavanaugh was sworn in Saturday evening in a private ceremony as protesters chanted outside the court building.
McConnell said the confirmation fight had energized Republican voters and he praised GOP senators, whom he said re-established the “presumption of innocence” in confirmation hearings.
“We stood up to the mob,” he said. “This is an important day for the United States Senate.”
Two years ago, McConnell blocked a vote on Garland, citing what he said was a tradition of not filling vacancies in a presidential election year. But when asked again Sunday about it, he sought to clarify that a Senate case in 1880 suggested inaction on a nominee only when the chamber was controlled by the party opposing the president.
Republicans currently hold a 51-49 majority in the Senate, with several seats up for grabs in November. The court’s two oldest justices are Democratic appointees: Ruth Bader Ginsburg is 85 and Stephen Breyer is 80.
If you have a Senate of a different party than the president, “you don’t fill a vacancy created in the presidential year,” McConnell said.
Trump has now put his stamp on the court with his second justice in as many years. Yet Kavanaugh is joining under a cloud.
Accusations from several women remain under scrutiny, and House Democrats have pledged further investigation if they win the majority in November. Outside groups are culling an unusually long paper trail from his previous government and political work, with the National Archives and Records Administration expected to release a cache of millions of documents later this month.
Still, Sen. Chris Coons, D-Del., said he believed it would be premature for Democrats to talk about re-investigating Kavanaugh or a possible impeachment if the party takes control of the chamber in November, stressing a need to help heal the country.
“Frankly, we are just less than a month away from an election,” Coons said. “Folks who feel very strongly one way or the other about the issues in front of us should get out and vote and participate.”
McConnell spoke on “Fox News Sunday” and CBS’ “Face the Nation,” Kasich appeared on CNN’s “State of the Union,” and Coons was on NBC’s “Meet the Press.”
Opinion: The Voices We Need to Propel the Blue Wave to Victory
By Lizet Ocampo
With just over a month until this year’s midterms, political pundits are amping up their debate and analysis on political races’ front-runners, voter turnout and the much-cited blue wave. Indeed, the blue wave is real, and it will likely make history in November — but only if we all vote. Every vote matters.
Recent polling data on support for Democratic candidates indicate that voters are increasingly fired up about electing progressive candidates. For example, last year in Virginia, we saw electoral wins up and down the ticket with the help of 366,000 young voters and thousands of first-time voters who recently had their right to vote restored. And we’ve seen similar victories all across the country in special elections and primaries since then.
But the blue wave is not just about winning elections — it’s about creating change that makes a difference for communities: enacting better-paying jobs, expanding access to affordable health care, and expanded civil rights that every American deserves.
Case in point: due to the electoral wins in Virginia, state legislators were able to expand Medicaid. As a result, 400,000 low-income Virginians will have the health care they need and deserve. And imagine what they could do if Democrats controlled the Virginia state house, which was decided by just one vote.
Gubernatorial candidates Andrew Gillum, Stacey Abrams, David Garcia and Paulette Jordan clinched their primary wins in Florida, Georgia, Arizona and Idaho by offering progressive policy proposals. And in these Republican-controlled states, they are running in competitive general election races on important issues. And voters are listening.
From feelings of despair after Trump’s election to motivated resolve just days after his inauguration, millions of Americans have shown how hungry they are for new progressive political leadership, and as the leader of a national program that helps progressive candidates win their races, I’ve been privileged to witness these candidates’ campaigns gain momentum. But it’s going to take every voter from every walk of life to make the blue wave a reality. That includes first-time voters, formerly incarcerated people, young people, and racial and ethnic minorities that hold the power to transform our country’s future.
I’m proud to say that I work for a progressive organization that reaches out to those communities with campaigns that empower them to make their voices heard at the ballot box. And after years of pushing for transformative political change, I’m heartened to see so many diverse progressive candidates poised to make history.
But ultimately, it’s voters who can make that happen. This year’s progressive candidates are campaigning on the change we said we need — and it’s time for us to step up, vote and encourage our own neighbors to do the same. Let’s do the work to create that blue wave — and make history this November.
ABOUT THE WRITER
Lizet Ocampo is the political director for People for the American Way. She wrote this for InsideSources.com.
Dangerous White Lies
By Wim Laven
When I started teaching at the university level, about 1,500 students ago, I had no idea that I’d ever have to dedicate class time to address honesty. Some brief reminders on plagiarism was all that I was used to. That Melania Trump could use some help, her “Be Best” speech was stolen from Michelle Obama, is good for a couple laughs. Over time truth has become quite an issue. What sense should my students make of a president who’d told 4,229 lies in the first 558 days of his presidency? What about his claims about “fake news?” Over and over Donald Trump cries out “FAKE NEWS” only for the story to be confirmed as true. My job is not to be an oracle of truth, I don’t lie, but that only encourages the return to authority as truth; I try to give the tools for navigating the terrain of dishonesty, but I’ll admit it is getting harder.
“All politicians lie.”
Statements of universal political dishonesty are ubiquitous, but are they accurate? In class students are expected to learn about ad hominem arguments, this is the fallacy of attacking a source instead of the claim, which is intended to inspire a false equivalence. That Trump has lied at a pace without any comparison is not in and of itself proof that any particular statement is a lie, it is just good evidence for claiming him to be untrustworthy. Barack Obama lost some trust when he won the lie of the year distinction in 2013 for saying, “if you like your health care plan you can keep it.” Claims must be judged on their merits, period. Not all lies are the same, and a university education is expected to provide students with the ability to evaluate claims. Clearly some politicians are more honest than others.
“It is just he said, she said…”
Trump’s recent nomination to the Supreme Court is a controversy, like many (maybe even most) of his decisions so it is not surprising that people have chosen sides. But many popular memes are simple not true. “He said, she said” is an effort to make an equivalence in testimony, and it is used to argue towards the point that if you’re going to believe testimony, then you must trust both testimonies equally. The point could not be further from the truth. Testimony is evidence, and evidence is used to support or deny claims. Witness testimony is one of the most common types of evidence used, and there are many mitigating factors used in judging the veracity of its value as evidence. Evidence must always be weighed against a standard of judgment.
“Supporting Kavanaugh means you believe in innocent until proven guilty.”
Students are very confused about standards of judgment. Despite the factual basis for standards of judgment—let me be clear here, class, the presumption of innocence relates to criminal law—the hearing for a Supreme Court Justice is not a criminal matter, it is a job interview. The elevated standard—beyond reasonable doubt—is used in criminal cases because a person’s freedom or life is at stake. Other cases use different standards, like “preponderance of the evidence” or “clear and convincing.” The burden of proof is different out of utility, an employer does not need to “prove” you were smoking marijuana outside before the interview, they may pass on your application just for smelling the weed on you, even in a state where it has been legalized.
“Everyone is entitled to his own opinion, but not to his own facts.” ― Daniel Patrick Moynihan
Senator Jeff Flake used this quote when he called out Trump’s dishonesty. He noted “alternative facts” and the assault on the free press among his criticisms. He was troubled by Trump’s naming of the press as “the enemy of the people.” Flake is credited with getting the Senate to investigate allegations of sexual misconduct in the Kavanaugh nomination, which may have been prompted by two women confronting him with their “my assault does matter” in an elevator. But the fact here is that the investigation was limited. The White House has been allowed complete control over “facts,” they determined some allegations were not credible enough to be investigated. Fact: checks and balances were put in place on purpose. Opinion: we should be scared that Trump has too much influence over appointing a judge who could possibly have a deciding vote in a case on his impeachment; the lies are destroying the country, and the US has become a complete laughing stock; the Russian troll farms were able to weaponize American ignorance and susceptibility to dishonesty—the lies have real consequences. When will Americans become lifelong learners and begin to sift truth from lies competently?
Wim Laven, syndicated by PeaceVoice, is a doctoral candidate in International Conflict Management at Kennesaw State University, he teaches courses in political science and conflict resolution, and is on the Governing Council of the International Peace Research Association.
Why Conservatives (Still) Like Kavanaugh
By Matthew Johnson
Senator Collins should be proud of herself. She will now potentially go down in history as the woman who made the overthrow of Roe v. Wade possible — despite her allegedly pro-choice views.
Her name will go down in the annals of self-hating women along with the likes of Phyllis Schlafly and Laura Ingraham. Swing-vote Senators Jeff Flake and Joe Manchin will likely emerge unscathed, given that men are rarely held responsible for contributing to women’s oppression. Kavanaugh’s successful confirmation is case in point.
It may be tempting to fall into dismay, to grow red in the face, to wonder how this could have happened — how could these educated people so brazenly fall for the (bad) acting of Judge Kavanaugh and doubt Dr. Ford, who even Fox News’s Chris Wallace called “extremely credible”? Moreover, how could they ignore retired Justice John Paul Stephen’s argument that Kavanaugh, even if innocent of sexual assault and drunken disorderly conduct, is still unfit to hold the gavel due to the hyper-partisanship he displayed after Dr. Ford’s testimony? These are important questions, but I believe they miss the larger truth.
The truth is that it’s irrelevant whether conservatives believeDr. Ford: they simply do not care. They don’t care about Ford or any other outsider to their cause. They do not operate based on principles of justice — at least not the same principles of justice that liberals are familiar with. They are not concerned with a careful examination of the evidence when doing so might challenge their worldview. George Lakoff made similar claimsseveral years ago. He explained why liberals fail to win elections, along with the hearts and minds of conservatives. Yet Democrats and liberals continue to operate in a vacuum and continue to lose winnable battles.
As painful as it was for liberals to watch Kavanaugh’s emotional display — complete with nostalgic sobbing, conspiratorial accusations, and awkward, self-righteous anger — conservative viewers likely empathized with him even more. In Arlie Russell Hochschild’s recent book, Strangers in Their Own Land, she demonstrates how conservatives “identify up” with those who are more privileged. They also do not like being told by over-zealous liberals that they should feel something for the little guy (read poor people, immigrants, sexual assault survivors, etc.). Bottom line: conservatives see in Judge Kavanaugh someone they admire while they see in Dr. Ford an obstacle to their own, in this case vicarious, success. Therefore, it is not Orwellian doublespeak to claim that both Ford and Kavanaugh were credible witnesses in the Sept. 28 Senate hearing; nor is it cause to dredge up dubious theories of mistaken identity. Both witnesses can be credible at the same time but in different ways: Ford is credible due to her temperament, professionalism, and consistency while Kavanaugh is credible due to his success and his loyalty to conservative causes. Oh, and it also helps that he’s a white man.
If there is one major takeaway for liberals — other than to keep fighting and avoid despair — it is increased awareness of how conservatives view this unprecedented fight for a Supreme Court majority. For the Left, it’s about what is just. It’s about empowering the disempowered, and, in the same vein, it’s about placing checks on power and privilege. For the Right, it’s about tribal loyalty. It’s about winning. Kavanaugh may not be perfect, but he’s their guy. They must protect him from those who would impede his progress, and, by extension, their own progress and that of their families and communities — as they see it. Justice for those outside their allegiances is not a compelling enough reason to be disloyal.
Susan Collins is a Republican who answers to her conservative base. This, to me, best explains her vote. History will be the ultimate judge.
Matt Johnson is an author and activist.
GOP students threatened to sue bar over Kavanaugh event
Monday, October 8
SEATTLE (AP) — A group of Republican college students in Seattle threatened to sue a local bar in order to host an event celebrating the confirmation of Supreme Court Justice Brett Kavanaugh.
Kavanaugh was sworn in Saturday after a contentious nomination battle that culminated with a Capitol Hill hearing where the judge emphatically denied allegations of sexual misconduct and acknowledged drinking alcohol while underage.
KIRO-TV reports the University of Washington College Republicans threatened legal action after the sports-themed Shultzy’s Bar and Grill asked the group to go elsewhere because of the “political nature” of their “Beers 4 Brett” event.
Lawyers with the group Freedom X said it would sue if the Republicans were denied service.
The bar declined to comment.
The UW College Republicans’ president said they met there Saturday without disruption.
Information from: KIRO-TV, htthttp://www.kirotv.com/index.html
Battles over patriotism, Pledge of Allegiance in schools span a century
September 14, 2018
Professor of Philosophy, University of Rochester
Professor of Education, Bowdoin College
Randall Curren’s research has been supported by grants and fellowships from the National Endowment for the Humanities, National Science Foundation, Andrew Mellon Foundation, Spencer Foundation, and John Templeton Foundation.
Charles Dorn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
Bowdoin College provides funding as a member of The Conversation US.
When a California school principal called controversial quarterback Colin Kaepernick an “anti-American thug” for his protests during the national anthem at NFL football games, passions were inflamed anew over whether patriotism should be taught in America’s schools.
As our new book “Patriotic Education in a Global Age” demonstrates, such debates are longstanding in American history.
Posting schoolhouse flags
Seventy-five years ago, at the height of America’s involvement in World War II, the U.S. Supreme Court handed down a decision in West Virginia State Board of Education v. Barnette that guaranteed public school students’ right to refuse to stand in patriotic salute.
Barnette’s origins go back to the late 19th century, when patriotic societies such as the Grand Army of the Republic – a Civil War veterans’ organization – and the Woman’s Relief Corps – the organization’s women’s auxiliary – launched a campaign to place a flag in every public school classroom. “The reverence of schoolchildren for the flag should be like that of the Israelites for the Ark of the Covenant,” the organization’s commander-in-chief William Warner enthusiastically declared at a rally in 1889.
Three years later, in 1892, the schoolhouse flag movement received a huge boost when The Youth’s Companion – one of the nation’s first weekly magazines to target both adults and their children – hired minister-turned-advertiser Francis Bellamy to develop promotional strategies to commemorate the 400th anniversary of Columbus’ voyage to America. Bellamy’s national Columbus Day program involved assembling millions of students at their local schools to recite a pledge in salute to the American flag. The magazine profited from flag sales leading up to the event. The United States didn’t have an official pledge of national loyalty, however. So Bellamy composed his own: “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.”
Over the course of the next 40 years, the pledge underwent three revisions.
The first occurred almost immediately following the Columbus Day celebration when Bellamy, unhappy with the rhythm of his original work, inserted the word “to” before “the Republic.” Between 1892 and the end of World War I, this was the 23-word pledge that many states wrote into law.
The second modiﬁcation occurred in 1923 when the American Legion’s National Americanism Commission recommended that Congress officially adopt Bellamy’s pledge as the national Pledge of Allegiance. Fearing, however, that Bellamy’s opening phrase – “I pledge allegiance to my Flag” – permitted immigrants to pledge allegiance to any flag they desired, the commission revised the line to read, “I pledge allegiance to the flag of the United States of America.”
Over time, schools adopted the revision. Finally, in 1954, after the federal government included the pledge as part of the U.S. Flag Code during World War II, Congress reacted to the so-called godless communism many believed was infiltrating U.S. public institutions by adding the phrase “under God.”
Mainstreaming the pledge
Throughout the early 20th century, states across the nation passed laws that required student recitation as part of a morning flag salute so that by the time the United States plunged into World War I against Germany in 1917, pledging allegiance to the flag had become the standard beginning to the school day.
This explains why, in October 1935, 10-year-old Billy Gobitas and his 11-year-old sister Lillian were expelled from school after they refused to salute the flag. As Jehovah’s Witnesses who believed that venerating the flag violated God’s prohibition against bowing to graven images, the Gobitas family argued that the flag salute infringed the children’s First Amendment rights.
The Supreme Court eventually heard the case Minersville School District v. Gobitis – a misspelling of the respondent’s surname – and decided for the school district. “We are dealing with an interest inferior to none in the hierarchy of legal values,” Justice Felix Frankfurter wrote for the court’s 8-1 majority, as France was overrun by Hitler’s army: “National unity is the basis of national security.”
Court declares rights
Controversy ensued. Throughout the country, newspapers reported on debates over the flag salute.
Acts of violence were committed against the Jehovah’s Witnesses. These included beatings acts of arson and even a case of tar and feathering.
At least partly because of the public’s reaction to the decision, the court agreed to hear another case that involved the flag salute just three years later. This time the case was brought by the families of seven Jehovah’s Witness children expelled in Charleston, West Virginia. Surprising many, the justices decided 6-3 in favor of the families and overruled Gobitis.
On Flag Day, 1943, Justice Robert Jackson delivered the majority opinion in West Virginia State Board of Education v. Barnette. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,” Jackson declared. “If there are any circumstances which permit an exception, they do not now occur to us.”
Although the Barnette decision held that students could not be forced to recite the Pledge of Allegiance, the pledge has remained a mainstay of U.S. public education. Meanwhile, parents continue to oppose the pledge as a violation of their children’s constitutional rights.
Consequently, legal challenges persist. One of the most recent cases challenged inclusion of the phrase “under God” in the pledge. In this case – Elk Grove Unified School District v. Newdow – the court did not rule in the matter because the plaintiff who brought the suit lacked standing. Since the case did not address the underlying issue of religious freedom, future challenges are likely.
Similarly, Barnette did not address other pledge-related questions, such as whether students need parental permission to opt out of the flag salute. Cases that address this question, among others, continue to be pursued.
Whatever unresolved issues may remain, Barnette established as a matter of constitutional law and fundamental principle of American public life that participation in rituals of national loyalty cannot be compelled. The Supreme Court that rendered that decision clearly understood that non-participation can be well-motivated and should not be construed as a sign of disloyalty or lack of patriotism. The court was also clearly troubled by the vicious attacks on Americans who exercised their constitutional right not to participate.
We should be equally troubled now when we see public school leaders harshly condemn Colin Kaepernick – or any protester, for that matter – for how they choose to exercise their constitutional right to demand equal liberty and justice for all. Kaepernick decided to take a knee during the national anthem to protest police brutality against African-Americans. The question we would pose to Kaepernick’s critics is this: How is taking a knee to affirm our country’s highest ideals anti-American?