Happy July 4th! Here is my American story.

Happy 4th of July!

Let me first note, transparent in my pedantry, the Declaration of Independence was actually approved on July 2, 1776. Nonetheless, it was dated July 4, 1776 and signed August 2, 1776.

Allow me next to relate I was physically born (at long-since-closed Metropolitan Hospital, then at 3rd and Spruce) roughly 1/5 of a mile (about 4½ city blocks) southeast of Independence Hall, where both the Declaration of Independence and the Constitution of the United States were written.

And permit me to conclude with the fascinating coincidence that both the 2nd president of the United States, John Adams, and the 3rd president of the United States, Thomas Jefferson, died on this day in 1826—50 years to the day from the day we designate as our official day of independence from England.

That is, I conclude these introductory paragraphs that way.

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A few hours, I began to write a thread on Twitter. It opened thus:

1/ For July 4, I present my American story.

I was born in Philadelphia–where the Declaration of Independence and Constitution of the United States were written.

I was adopted in utero in the late summer of 1966. Both of my (legal) grandfathers were born outside the US.

The thread ties together the various elements of my background into a single, “American” story. Regular readers of this site will not be surprised, given a series of posts I have written (collected here) telling parts of this same story.

Moving right along:

2/ Morris Berger was born in what is now Poland in 1894 and came to the US when he was 4 years old. A Yiddish speaker, he became a successful business owner and Jewish community leader in West Philadelphia.

His son David Louis was my (legal) father.

He went the other direction.

Two things here (besides proudly observing I was given the Hebrew name Moshe ben David Leib in his honor).

One, the year of my (legal) paternal grandfather’s birth is incorrect. Twitter, however, lacks an edit function, so I could not correct this tweet once it was posted.

Two, there is some uncertainty as to when, exactly, Morris Berger (and three of his siblings) was born.

Next:

3/ Charming, gregarious and generous, “Lou” spiralled down after his iron-willed mother died in 1972. A gambling addiction cost him the business his father and uncle had built. He also lost his marriage–though he never lost me. He died, broke, from a heart attack at 46 in 1982.

David Louis “Lou” Berger died on June 30, 1982, meaning the 37th anniversary of his death was four days ago. By an egregious act of bad timing, June 30 is also the birthday of a close cousin. In fact, my mother and I spent the evening he died at a birthday party for this cousin. As we walked in the front door of our apartment after the celebration, the phone was ringing shrilly. My mother walked behind her white-and-chrome desk to answer it. It was her ex-husband’s—what is the adult form of “girlfriend?”—calling from her hospital bed to inform us of Lou’s sudden passing.

At the time, he was driving a cab for a living (quite happily, I hasten to add, because it gave me a freedom he had rarely known). He was headed to Little Pete’s diner (which closed in 2017) to meet some fellow cabbies for a meal, when he collapsed on the sidewalk in front of the Warwick Hotel (where my wife Nell and I stayed a few times early in our relationship). He was dead before he hit the ground from his third heart attack in 10 years.

Ignoring decades-old tears and moving on:

4/ Yisrael HaCohen was born in what is now Ukraine in 1904. He came to the United States when he was 7, speaking Yiddish. To join the Philadelphia Police Department in the 1930s, he changed his name to Samuel Kohn (sounded less Jewish) and changed his birthplace to Cleveland.

This story I have told before, so let us proceed:

5/ He served for nearly 20 years, rising to Detective. He ultimately retired to Atlantic City.

His daughter Elaine was my (legal) mother.

Serious reproductive health issues (and hysterectomy) led her only natural child (b. 1962) is “severely intellectually disabled.”

Again, one cannot edit a tweet—that should read, “led…to be.”

Because it is better to laugh than to cry, I sometimes tell the following “joke”: My mother had two miscarriages and a hysterectomy, and then I was born!

It was not until I became my sister’s sole legal guardian and began receiving her annual Life Enrichment Plans that I knew the extent of my mother’s reproductive miseries. Besides the two miscarriages—and a prolonged, painful labor resulting in her daughter being deprived of oxygen at critical moments during her birth process—Elaine Berger also had uterine cancer. Thus, the hysterectomy.

Oy.

Next:

6/ I am my sister’s legal guardian. She lives in a facility run through private-public partnership; she is funded through supplemental Social Security income. Thank you, FDR.

Elaine took the opposite path from Lou. After her marriage ended in 1977, she worked a minimum wage job.

She actually took that job—cold-calling folks on behalf of the A-1 Carpet Cleaning Company—some time around October 1976, as her marriage was inexorably coming to an end.

And I must say this: the end of my (legal) parents’ marriage was about as amiable as such an event can be. As painful as it must have been (the night before they officially separated was the only time I saw my father cry), I will always be grateful to them for this civility.

Meanwhile, this is what I mean by “supplemental Social Security income.”

Moving on:

7/ Eventually, Elaine bought that business and, with some help from her own business-owning mother, made a good living for nearly 25 years.

But her reproductive issues returned, and she died from ovarian cancer, aged 66, in 2004.

Oh…her mother. Irene Gurmankin, later Goldman.

Yes, my (legal) maternal great-grandfather—or, at least, his four daughters—also Anglicized his name.

Three years after Elaine Berger began as a minimum-wage-earning telephone solicitor, the owner—a lovely man named (if memory serves) Schwartz—retired. My mother worked out a deal with the man who owned the actual carpet-cleaning machinery to run the business together. A few years after that, this other man retired (or something, my memory defies interrogation on these points), and Elaine Berger took over the A-1 Carpet Cleaning Company (a two-person operation—three when I pitched in, mostly by filing or placing leaflets on car windshields—to be sure) for good.

Here she is in 1988 running that business (same desk, different apartment) with her two children framed in the background:

1988-2.jpg

Next:

8/ After divorcing Samuel Kohn in (I believe) 1964–a rarity in those days–she started a cosmetics and costume jewelry business. That business–and her own iron will and fierce work ethic–became fairly successful, allowing her to live comfortably until her death at 92 in 2007.

For some reason, Irene Kohn (she kept the surname) soon moved 60 or so miles west to Lancaster, Pennsylvania, where she set up shop at the newly-opened Host Farm. Because of her beauty and extroverted (if sometimes cruel—my relationship to her was complicated) charm, she quickly established herself as the unofficial hostess of the sprawling resort. This was a great boon to my cousins and me, who effectively had the run of the place (two pools, a game room, a gift shop, three great restaurants with employee discounts, endless hallways to explore, a superb daylong program called the Peppermint Parlor). Heck, I got to see my man Rupert Holmes perform in the Host Farm Cabaret (for free) in the summer of 1981!

She finally moved back to Philadelphia in 1984, though she never actually retired, running a mail-order business for loyal customers well into her 80s.

Next:

9/ Meanwhile, Morris Berger died, aged 61, in 1954 (correction, he was born in 1893–if only Twitter allowed editing), and Samuel Kohn died, aged 73, in 1978.

OK, that is my legal family, the only family (prior to marriage and parenthood) I have ever known.

I really wish I could have known my namesake—whose death was one of a series of blows to young Lou Berger, who was asked to shoulder more responsibility than he was prepared to. As for “Pop Pop Sam,” for all his “combative personality” and temper, he was a kind and loving grandfather, and I miss him still.

The next few tweets in the thread speak for themselves:

10/ Here is what I know about my genetic family.

My maternal grandmother could trace her ancestry–and family presence in the United States–to the 1700s. English, Dutch. Her ancestors primarily lived in the southeasterern [sic] United States.

Where they fought for the Confederacy.

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11/ Alice Mulkey married an Irish Catholic Philadelphian named William Dixon, and moved to Philly. Their first child is my genetic mother.

They lived in what was then a working class area

At 19, while working at Philadelphia’s Drexel University, she met my genetic father.

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12/ This part is…fuzzy…so I elide it.

However, the man she met was almost certainly the only son of legendary naval historian Reuben Elmore Stivers. Assuming I am correct, my genetic father died in 2006.

The Stivers family also goes back in the United States to the 1700s.

I exaggerate only slightly when I use the word “legendary” to describe the man who is almost certainly my (genetic) paternal grandfather. When I explained to a different cousin, who serves his country ably and proudly as a Lieutenant Commander, Naval Intelligence, “Smokey” Stivers was likely my ancestor, he said admiringly, “Oh, THAT Reuben Stivers!”

Continuing the thread:

13/ Except they were primarily in Kentucky.

And those men fought for the Union during the Civil War.

“My” branch settled in the Maryland suburbs of Washington, DC. This could explain my (legal) mother’s belief that my genetic father was Colombian.

I miss her (and my father).

Two points.

One, it was not just Kentucky. It was specifically around Lexington, Kentucky, based on what I have learned on Ancestry.com and through discussion with newly-discovered genetic cousins (who have been unfailingly gracious).

But more to the point, I was shocked to learn my genetic ancestors fought each other (perhaps literally, I do not know) in the American Civil War; ponder that counterfactual for a while. This discovery also fits well within the context of my “split identity” first post.

Two, Elaine Berger was so convinced (after a bad game of Telephone: my genetic mother conveyed what she knew to Modell, who passed it on to his client, who probably misunderstood “District of Columbia”–which had only just received its three electoral votes—as “Colombia”) of my genetic paternal heritage she went to the library to see what Colombian children looked like. I do not know what photographs she saw, but she told me numerous times she thought I would be black, or at least much darker-skinned.

She was one of a kind, my mother was.

14/ Upon learning she was pregnant, my genetic mother–unmarried and lacking means–chose to put me up for adoption.

That adoption was arranged through another child of Jewish immigrants, Herman Modell.

How, you ask, did my (legal) father and uncle know the powerful Mr. Modell?

I scrupulously avoid injecting my own political beliefs onto this site, but I make an exception here.

Had I been conceived seven years later, my genetic mother could have had her fetus legally aborted, thanks to Roe v. Wade.

Now, because of her Catholic upbringing—and this is pure speculation on my part—my genetic mother may have carried me to term anyway. She also may have been living in different economic and/or personal circumstances after January 1973. The counterfactuals make my head spin.

And let me back up a second here.

Nell and I have discussed on more than one occasion how much of a role privilege (read: white privilege) plays here. Her own mother was raised with a modicum of wealth, and there is no doubt that if she had found herself with an unwanted pregnancy early prior to 1973, her family would have quietly arranged an abortion for her. It is a near-certainty my genetic mother had no such option (which is why, as long as I am shouting from my soapbox, I have always been opposed to the Hyde Amendment—it denies less well-off women access to a Constitutionally-protected medical procedure and is thus, frankly, unconstitutional. Talk about an “undue burden!”).

But if, under ANY circumstances, my genetic mother had chosen to abort the fetus gestating in her womb—the fetus that would not really become yours truly until the end of September 1966—I would absolutely and unequivocally support that decision.

It was her body, so it was her choice. As it is for all women, everywhere. If you do not like abortions, do not have one, but do not sit in any sort of judgment on any woman who makes that most painful of decision in private consultation with her medical providers and selected loved ones.

Just as I do not get to sit here, more than 50 years later, and judge my genetic mother for any decision she made (or did not make, or could/would have made). I did not yet exist as an autonomous being…and I if I had never existed as an autonomous being, so be it. It was never my decision to make.

My (legal) mother would often remark something to the effect of “If men could get pregnant, you would be able to get an abortion on any street corner.”

For a woman with only a few years of post-high-school medical technician training, she saw things with exceptional clearly.

Returning to my Twitter thread:

15/ Through their simultaneous membership in La Fayette Lodge No. 71.

Yes, my (legal) father, his uncle and the powerful lawyer who arranged my adoption were brother Freemasons.

To be fair, my (legal) father was asked to leave La Fayette Lodge No. 71 for non-payment of dues.

I have told some of this story before, so let us move on; see also here. I would just add that to the extent you knew my father—and realize he was a Freemason for about 10 years—any support for the myth of the controlling influence of the Freemasons evaporates.

16/ But consider this.

When the unplanned child of two people who could trace (mostly) ancestry in the United States to the 1700s was placed for adoption, with whom was he placed?

The children of Yiddish-speaking immigrant fathers who had built successful lives in Philadelphia.

And there it is…thank you for continuing to “just bear with me.” Often lost in our collective squabbles over immigration: the descendants of recent immigrants often do better economically and socially than the longer-term “original settlers.”

Speaking of bearing with me:

End/ I was fortunate to be raised by loving parents of some means in the leafy suburbs north and west of Philadelphia. Nature and nurture cooperated successfully, and I enrolled in Yale College in 1984, sparking a fairly successful life of my own.

And that is #MyAmericanStory

Here is a photograph of those leafy suburbs, as my (legal) father holds his two children (backstory here):

Sue Ellen Drive Feb 1967 or October November 1967

And here I am with my legal mother and maternal grandmother at my graduation from Yale in 1988.

Yale graduation with Nana and Mom 1988.jpg

Here is the first postscript:

PS/ I am writing a book (inspired by, of all things, trying to explain why I love #FilmNoir so much) detailing this history. Working title: Interrogating Memory: Film Noir, Identity and a Search for Truth.

For more, please see justbearwithme.blog.

Thank you, and Happy 4th!

Hmm, this is getting very circular.

And, finally:

PPS/ My profile picture is from my (legal) parents’ wedding in January 1960. Their wedding, literally and metaphorically, took place about half a mile south of City Line Avenue. They were on the Philadelphia side, but maybe they could see their future home in the suburbs.

For those of you who do not follow me on Twitter (tsk, tsk–@drnoir33), here is that photograph:

Elaine and Lou Berger with parents January 17 1960.jpg

I do not know who the gentleman on the far left is (a great-uncle?), but from left to right are Rae Caesar Berger (mother of the groom, Lou Berger, Elaine Kohn Berger (photograph taken after exchange of vows), Irene Kohn (mother of the bride) and Samuel Kohn (father of the bride).

I LOVE this photograph, even if the men on either end look dyspeptic.

Please have (or continue to have, or I hope you had) a safe and festive holiday!

Until next time…

Brett Kavanaugh and (not so much) I at Yale

I post this on my 52nd birthday (it is now past midnight in Boston). Over the last two years—since I turned 50—I have spent a great deal of time contemplating my “identity.” Indeed, my first post, in December 2016, was an exercise in contrasting autobiographical framing. Since that split-screen introduction, I have been coming to terms with what I have learned through genetic testing and my dogged investigation of the circumstances surrounding my in-utero adoption.

One clear conclusion is that I owe my fortunate—almost (but not quite) “privileged”—life to that adoption.

That notion of privilege—of “white male privilege,” in particular—came into very sharp focus for me (and for the country) last week.

Like many Americans, I spent Thursday, September 27, 2018 riveted by the testimony of Dr. Christine Blasey Ford and United States Court of Appeals Circuit Judge Brett M. Kavanaugh before the United States Senate (“Senate”) Judiciary Committee. Our living room television was tuned to MSNBC from 9:30 am to just after 11:00 pm, with a brief interim in the late afternoon to take our daughters to the library and swimming class then let them watch their own shows in the early evening.

And then I spent Friday, September 28, 2018 equally riveted by the decision of Senator Jeff Flake (R-AZ) to condition his vote to approve Judge Kavanaugh’s nomination to be an Associate Judge of the United States Supreme Court on the final vote being delayed by no more than one week so the FBI could conduct a supplemental background investigation into a series of credible accusations of sexual assault made against Judge Kavanaugh. Although the efficacy of that investigation is now in some doubt.

Setting aside the fact I am a political junkie who closely follows events of this nature and a natural human curiosity to see and hear Dr. Ford tell her story, I was particularly riveted by what I recently learned about my personal connection to Judge Brett Kavanaugh.

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Just after 6 pm on Thursday, September 20, 2018, as I was sitting on the sidelines of our eldest daughter’s soccer practice, I noticed a missed call and text message. Both were from the identical 917 area code telephone number; that area code covers the five boroughs of New York City.

The text message read as follows:

Hey Matt, it’s Ben Protess from the New York Times. I’m working on a story that I wanted to run by you. Can I grab a minute? Many thanks.

I was skeptical—though I could not imagine why anybody would prank me in quite that way. And I quickly ascertained a Ben Protess writes for the New York Times, though I could not see how any of his areas of investigative focus applied to me. Perhaps it was something I had written on this blog?

After consulting with my wife Nell, who saw no harm in returning the call, I dialed the 917 number.

“This is Ben.”

I introduced myself.

He thanked me for returning his call, and we chatted for a few minutes…

…and that was how I learned that Judge Kavanaugh was a fellow Stilesian, though he was Class of 1987, while I was Class of 1988.

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I wrote recently about the residential college system at Yale University, where I earned a Bachelor’s Degree in political science in 1988:

“When I was an undergraduate at Yale, there were 12 residential colleges; I was in Ezra Stiles College (class of 1988). These were intended to be smaller communities—each with its own residential building(s) with interior courtyard, dining hall, library, seminar rooms, Master and Dean, etc.—within the larger community of undergraduates.”

To promote further identification with one’s residential college (purportedly randomly assigned, though special requests are sometimes honored), freshmen in 10 of the 12 (when I enrolled in 1984) colleges actually lived in a college-specific “hall” on Old Campus; freshmen in Silliman and Timothy Dwight move directly into their respective colleges (as do freshmen in the recently-opened Benjamin Franklin and Pauli Murray colleges). Two of these halls had an odd “rivalry”: periodically, a student from one hall would yell, “Wright Bites!” to which a student from the other hall would yell “Durfee Sucks!” Wright Hall (now Lanman-Wright Hall) houses Pierson and Saybrook freshmen, while Durfee houses Morse freshmen (at least, they did in the 1984-85 school year).

Ezra Stiles (ES) freshmen live in Lawrance Hall; two of its four entryways (A and B, I believe) are pictured below (photograph taken on the weekend of my May 1988 commencement).

Lawrence Hall May 1988

Here is a view from College Street, looking north-by-northeast. Lawrance Hall is just beyond the tall structure in the center of the photograph, though the building just beyond the black truck looks essentially the same.

Old Campus May 1988 College Street

Each of the five floors had a suite housing six students, divided into a common room, bathroom, two double and two singles; I occupied a single in the suite on the 4th floor spanning entryways A to B.

There were also smaller suites in the basement of each entryway. Judge Kavanaugh occupied one in D entryway his freshman year—the year before I arrived.

Adding to the separation is that freshmen generally eat in a cavernous dining hall called Commons, while upperclassmen eat in their residential college dining hall, though with a valid dining hall card you could eat in any Yale dining hall, including the graduate school.

In other words, when I was a freshman, I would have had minimal, if any, contact with a sophomore like Brett Kavanaugh. Only when I was a sophomore and junior—and he was a junior and senior—did we both live in Ezra Stiles College (whose courtyard is pictured below in May 1988).

Scan0042

However, as I told Mr. Protess, I was not aware (or I had forgotten) Brett Kavanaugh and I had both lived in Ezra Stiles College for two years until our telephone conversation.

Following that revelation, I asked Mr. Protess how he had found me, and he cryptically observed the Yale Daily News archives are publicly available. And, in fact, I had appeared in a story my junior year about winning a “guess the Grammy Award winners” contest sponsored by the campus radio station. I won $25, but I was also supposed to program the station for an hour; that would have been a blast.

And then we got to the heart of the matter: did I know any ES’87 folks to whom he could talk about Judge Kavanaugh? Specifically, did I know anyone who would know something about an event that took place in Lawrance Hall during his freshman year? It is almost certain (though I do not know for sure) that he was seeking information about the not-yet-public allegations made by fellow ES’87 alumna Deborah Ramirez.

Unfortunately, as much as I was drawing a blank on Judge Kavanaugh, I could not remember any names from the class ahead of me; in the moment, I blanked that the husband of a fellow ES’88 alum was ES’87. What I could do, however, was reach out to the two dozen or so ES’88 alums with whom I am friends on Facebook. They did not remember much about Judge Kavanaugh either, though I learned at least one other New York Times reporter as well as a Bloomberg News reporter was also calling ES’88 alums. I also learned (as has since been reported) that “Jamie” Roche was a freshman-year roommate of Judge Kavanaugh, and that a fellow member of his junior varsity basketball team had written a heartbreaking Facebook post about the Brett Kavanaugh he knew versus the Brett Kavanaugh emerging through the allegations.

As with Judge Kavanaugh, I do not remember Ms. Ramirez or Mr. Roche…or two other Class of 1987 alumnae who have spoken publicly about Judge Kavanaugh.

But here is the thing. The residential separation of Yale freshmen (in 10 residential colleges) may promote strong bonding within members of the same residential college and class but it also delayed routine interaction with upperclassmen for one year, after which social circles have already formed. It is certainly possible I encountered Brett Kavanuagh in the dining hall lines or in my capacity as (in consecutive years starting with freshman year) Secretary, Fundraising Committee Chair and Chairperson of the ES College Council, but if so, I do not recall these encounters.

Still, I would have shared the following volumes with Mr. Protess had I had any listing Brett Kavanaugh, though I suspect he or one of his colleagues eventually found a copy of one or both. I had forgotten until I pulled it off the shelf that we referred to The Old Campus as “the face book.”

Class of 1988 Old Campus

Ezra Stiles Directory 1987-88

When I told Mr. Protess that, as a natural archivist, I had kept copies of these two volumes, he said “Bless you for doing so.”

You’re welcome. Thank you for performing the republic-saving work of independent investigative journalism.

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If I have one quibble with the New York Times’ reporting on Ms. Ramirez’s allegation, it is its overly simplistic division of Yale students into “moneyed elites” and “lower middle-class outsiders.” Those folks were certainly there, but the vast majority of my fellow students came from the same background as me—middle class families who were not part of the nation’s financial and/or political elite. When I attended my 30-year reunion this past summer (driving to New Haven, CT for the day with our two daughters, who had a fabulous time exploring the campus and making friends with fellow alum’s children), I enjoyed a panel discussion on our current political climate by fellow members of the Class of 1988. One of them had written a book detailing the liberal egalitarianism that had emerged at Yale—once a conservative bastion of the nation’s most elite sons—in the decades prior to our enrollment. In this newly meritocratic Yale, what counted most when I matriculated there were your abilities and achievements, not your social status or family history—or which elite prep school you attended.

Judge Kavanaugh is being pilloried (rightly, in my opinion) for the privileged-white-male attitudes he displayed in his appallingly rude behavior towards the Democratic members of the Senate Judiciary Committee on Thursday; this exchange (with a fellow alumna [Class of 1982], no less) particularly upset me. When I was at Yale, I certainly encountered a few white male students with the same attitudes, one of whom (the roommate of friends in a different residential college) could barely hide his contempt for me—a non-athletic (then, anyway) middle class non-legacy who had attended public schools and was accepted into Yale (after being wait-listed) solely on the strength of his grades, test scores and activities. At least, that is why I think he despised me. All these years later, it hardly matters.

But it pains me to think that casual observers of Brett Kavanaugh’s smug contemptuous behavior think it in any way reflects the reality my friends and I experienced at Yale. Far from “entitled,” the vast majority of us did not attend elite prep schools nor did we come from well-connected families (my widowed mother owned a small carpet and upholstery cleaning company). Instead, we worked hard both to be admitted there and to succeed there, expecting no special treatment.

So, when Judge Kavanaugh answered (or, rather, did not answer) questions with some variation of “I got into Yale College,” I wanted to scream, “Yeah, so the bleepity-frick what? What does that prove? That your character is revealed by your resume? No, sir, it is not. And please do not lump my beloved fellow alumnae/i in with your irrelevant, temper-tantrum-driven defense of your (alleged) misdeeds.”

And one more thing. The stories of Brett Kavanaugh and his circle of friends, male and female, engaging in seemingly endless drinking (and vomiting in the bathrooms) do not paint an accurate picture of what life was like in Lawrance Hall in the mid-1980s. This is not to say there was no drinking at Yale, despite the drinking age in Connecticut being 21 when I matriculated there.

I certainly did my share of (illegal) drinking at Yale, at least after my sophomore year. Through the middle of that year, I was scared to consume any alcohol, believing I had an addictive personality (and I had vivid memories of how goofy my mother looked when she and her friends would smoke pot; she actually told me that I was not allowed to do drugs until I was 32 years old, which was when she started smoking pot). Plus, my primary experience with alcohol had been the watered-down swill my father drank when he took me to Philadelphia Phillies baseball games at long-gone Veterans Stadium and the Mogen David wine proffered at our large extended-family Seders. However, something that year tempted me to try a bottle of Molson Golden—and it was good.  Until I turned 21 at the start of my senior year (prompting my roommates to take me to the now-defunct Gentrys’ for my first legal drink; I panicked and ordered a gin and tonic I did not love), I would have older friends order Molson for me at pizzerias like Broadway (which, sadly, no longer exists), Naples or Yorkside; this was before I discovered Scotch whiskey my senior year.

That November, I decided to attend “The Game,” held in New Haven that year. I was home in Penn Valley, PA for Thanksgiving break, so I awoke early that frigid Saturday morning planning to eat breakfast and drive the three-plus hours to New Haven. Somehow, I skipped (or skimped on) breakfast. Arriving at the off-campus apartment I shared with two other ES’88 men, I though I would prepare a thermos of hot chocolate and peppermint schnapps. The only problem was that all we had was a bottle of peach schnapps and a little bit of orange juice—the key components of a fuzzy navel. And instead of a thermos, I found a plastic pitcher—meaning that what I brought to the game with me was a large amount of peach schnapps mixed with a small amount of orange juice. This combination was quite delicious on my empty stomach during the first half of the game, as I sat and shivered with one of my roommates and his older brother, who had driven us to the Yale Bowl. The second half of the game, however, I spent mostly in the men’s bathroom “reliving” what I had drunk in the first half. And I cannot apologize enough to my roommate’s older brother, in whose car I puked on the ride back to our apartment. I was supposed to drive another Stilesian home to Pennsylvania that night…but clearly that did not happen. Thanks to a spectacular cheeseburger sub from here, however, I got through the night and was perfectly fine in the morning (thanks to the metabolism of a 21-year-old). I drove my friend home, with no hard feelings. With all that, however, I could not stand the taste of peach anything for more than 30 years.

As a fellow ES’88 alum pointed out on Facebook, the fact that few of us recall Brett Kavanaugh likely stems from his affiliation with the hard-drinking Delta Kappa Epsilon (DKE) fraternity. My understanding is that the residential college system emerged in the 1930’s as a counter to fraternity culture (Yale did not admit female undergraduates until 1969). Despite that, a number of fraternities operated on the fringes of our consciousness (well, my consciousness, anyway), though their actions never reflected the student body as a whole. And I once had the pleasure of “passing the Cups” at Mory’s—but that felt separate from the broader Yale experience.

The point being: Brett Kavanaugh existed in a social/drinking circle at Yale that the vast majority of my classmates did not—and, partly as a result, he left little-to-no impression on us. And his white male prep school entitlement is a far cry from the experience I had at Yale, where I befriended men and women like me: middle-to-upper-middle class overachievers who were admitted on merit and continued to work hard to excel (or just survive) there. That is the Yale I am proud I attended, and the one I celebrated with a magnificent group of friends this past May.

One final thought.

I have not addressed the OTHER social circle in which Brett Kavanaugh moved: the elite prep schools of Washington, DC and its close Maryland suburbs (where the man I am nearly-certain was my genetic father was raised—though he attended public high school, as did I in suburban Philadelphia). This harrowing expose, written by my wife Nell’s close childhood friend, succinctly captures a dark reality of that world: the drunken predatory boys only too willing to take sexual advantage of just-as-drunk girls. Nell attended one of those all-girl high schools and has stated multiple times in the last two weeks she could easily have been one of those girls, but for a large and chivalrous high school boyfriend.

I would like to shake the hand of that boyfriend in gratitude someday.

Until next time…

A Supreme opportunity to overcome partisan rancor

During my senior year at Yale, I took a seminar called “Political Uses of History.” The topic of my final paper (accounting for most of the course grade[1]) was the history lessons used to defend/critique the nomination of U.S. Court of Appeals for the District of Columbia Circuit (DC Appeals Court) Judge Robert Bork to the United States Supreme Court (SCOTUS). Upon being nominated by President Ronald Reagan to fill the seat vacated by Associate Justice Lewis Powell on July 1, 1987, Senate Democrats immediately expressed dismay at Bork’s “originalist” legal perspective (the Constitution of the United States only means what the original framers of the document intended it to be at the time).

They were also disturbed by Bork’s role as Solicitor General of the United States on October 20, 1973.

On the night now known as the “Saturday Night Massacre,” President Richard Nixon, alarmed by Watergate Special Prosecutor Archibald Cox’s request for secret White House recordings, demanded that Cox be fired–which only the Attorney General could do. When both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned rather than comply, the next person in line was Bork, who promptly fired Cox.

Bork ultimately lost his nomination vote 58-42. Reagan then nominated DC Appeals Court Judge Douglas Ginsburg, but he quickly withdrew his name after reports about prior marijuana use surfaced.

Oh, how times have changed.

Finally, Reagan nominated Anthony Kennedy, a judge on the U.S. Court of Appeals for the Ninth Circuit, and he was confirmed by the United States Senate (Senate) on February 3, 1988 by a 97-0 vote.

And after serving as the “swing” vote on SCOTUS for years, Justice Kennedy announced his retirement on June 27, 2018.

The tumultuous reaction to this news—laser-focused on the possibility that President Donald Trump will choose an ultra-conservative jurist who would be the decisive vote on issues like LGTBQ rights, abortion, guns and Obamacare—reminded me of my political uses of history paper.

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Just bear with me, then, while I review some recent history.

First, whether or not you approve of the filibuster (a final up-or-down vote can only occur if, say, 60% of legislators agree) as way to protect the rights of the minority party in a legislative body, it served to constrain judicial nominations by requiring a broad base of support.

Of course, it also meant that a determined minority could prevent any given nominee from a final up-or-down vote. After then-minority Senate Republicans kept doing just that to President Barack Obama’s nominees, the Senate voted 52-48 on November 21, 2013 to abolish the 60-vote threshold to end debate for all judicial nominations except for SCOTUS. In retaliation (and after Trump SCOTUS nominee Neil Gorsuch, a judge on the U.S. Court of Appeals for the Tenth Circuit, fell five votes shy of the required 60), the now-majority-Republican Senate voted 52-48 on April 7, 2017 to end the 60-vote requirement to end debate on SCOTUS nominees.

Goose, meet gander.

Gorsuch was then quickly confirmed by a 54-45 vote, with three Democratic Senators—Joe Donnelly (IN), Heidi Heitkamp (ND), Joe Manchin (WV)—voting yes. All three face reelection in 2018 in very Republican states: R+16.3, R+29.4 and R+35.5, respectively.

Why Gorsuch was nominated in the first place is the second bit of recent history to review.

On February 13, 2016, SCOTUS Associate Justice Antonin Scalia died. Soon after, President Obama nominated DC Appeals Court Judge Merrick Garland to replace him. Within hours, though, Senate Majority Leader Mitch McConnell (R-KY) announced that because Obama was in the last year of his presidency (and thus some sort of irrelevant lame duck), the Senate would not even hold hearings on ANY Obama appointment until after the November 2016 elections. Charles Grassley (R-IA), chair of the Senate Judiciary Committee—where any hearings would be held—concurred, and the seat remained vacant until Gorsuch was confirmed.

merrick garland

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Democrats, hamstrung by their current 49-51 minority in the Senate, appear to be taking two fundamental—and somewhat contradictory—stances on the vacancy created by Justice Kennedy’s retirement.

Some invoke the “McConnell Rule,” insisting no vote be held on a new SCOTUS nominee until after the 2018 midterm elections, even though there is no guarantee Democrats will net the two seats they need for a majority.

Others focus on defeating any nominee outright, honing in on the damage to their (and, full disclosure, my) priorities a solid 5-4 conservative majority could do, particularly the distinct possibility it would overturn Roe v. Wade, the 1973 SCOTUS decision that declared all state laws against abortion unconstitutional, effectively making abortion legal throughout the United States.

It should be noted that overturning Roe would not make abortion illegal everywhere in the United States. Rather, it would leave it to each individual state (and the District of Columbia) to decide whether abortion is legal within its borders. Still, many states have “trigger laws” that would immediately outlaw abortion to the extent legally possible the instant Roe is overturned.

Basically, then, the Democrats have two unpalatable options: try to delay the nomination until after the November 2018 elections, or assume a vote is inevitable and work to defeat it. The rub is that either option would require at least one Republican to buck her/his own party. For example, assuming Senator John McCain (R-AZ) is too ill to vote (and does not retire to give Republican Governor Doug Ducey the chance to pick a replacement), if the Democrats are unified, a single Republican “No” vote means the nomination is defeated 50-49. This, while not impossible, will not be easy either.

I feel compelled to note that this entire conversation is taking place BEFORE any nominee has even been announced. That in itself is worrisome.

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Let me address these two stances in turn before concluding with my own thoughts.

No political act enraged me more in the last few years than the theft of a SCOTUS seat by Senate Republicans. Barack Obama was president of the United States until noon on January 20, 2017, and the Senators elected over the elections of 2010-2014 were the representatives duly chosen to provide “advice and consent” on the nomination under Article II, Section 2. The people, whose will McConnell invoked, had already spoken by voting in the relevant elections. President Obama was thus denied a fair hearing and vote on his judicial nominee—that is theft.

As disgusted as I remain by that, however, I have deep concerns about the tit-for-tat invocation of the McConnell rule. Two wrongs do not make a right: as we remind our daughters, meanness by one to the other is not a license to be mean back.

I sympathize with the arguments that Democrats should not be a doormat, that McConnell brought this on himself, that turnabout is fair play, that the system is already broken…

And it is that last point that most gives me pause. With good reason, Democrats and like-minded Independents and Republicans decry the corruption and norm violations they see from the Trump Administration and its Congressional allies. But that powerful critique is severely undercut if the Democrats themselves use the violation of a norm (regardless of “who started it”) for their own partisan gain. This would simply be the rescinding of the judicial nominee filibuster all over again.

There is also the unpleasant whiff of “ends justifying the means” about invoking the McConnell rule. I recently called out the modern Republican Party for doing just that. It also recalls one of President Franklin Roosevelt’s worst moments: his 1937 scheme to expand SCOTUS by as many as six Associate Justices (which he would then appoint) to make it less hostile to the laudable New Deal.

It is fashionable to dismiss taking the high ground as weakness and some sort of “asymmetrical warfare.” And perhaps in this single instance—a uniquely pivotal SCOTUS seat following the theft of a prior seat—that is the correct conclusion. But that is a very slippery slope: if Democrats and their allies resort to using the same ruthless tactics to “win” this battle, how are they any better than the Republicans? Does that mean tribalist victory is all that matters now?

The argument may be moot—and mostly public posturing (pointing out the rank hypocrisy of blocking one nomination in an election year but not another)—since it is not clear the Democrats could actually prevent hearings and a vote, short of grinding the Senate to a halt.

And a far better argument for delaying hearings and votes is that a president who is the subject of a criminal investigation should not be allowed to nominate a SCOTUS justice who would almost certainly vote on questions pertinent to that investigation (e.g., Can a president pardon her/himself or be indicted while in office?).

The second stance is at least well within traditional Senate rules and has a successful recent precedent.

It still gives me pause, however, because I worry liberals and like-minded centrists have become too reliant—almost complacent—on the SCOTUS (and the courts more generally) to do too much of the heavy lifting of policy-making for them. Republicans, smelling blood on this point, successfully put SCOTUS front and center in the 2016 election.

It does not help that SCOTUS Justices have become as entrenched in their ideologies (though not always) as both major political parties—Justice Kennedy was the swing vote because the other eight Justices were so reliably liberal or conservative in their rulings. Gone are the days when President Dwight Eisenhower (supposedly) called his appointment of California Governor Earl Warren as Chief Justice “the biggest damned fool mistake I ever made.” Seriously, what would even be the point of arguing cases before SCOTUS if the outcome was always predetermined?

The more fundamental problem, however, is that the Democrats let too many state legislative seats get away from them in too many states over the last 10 years. It is in those very states that the most important policy outcomes—on abortion, LGBTQ rights, Medicare expansion, gun control—actually get decided. And that is how it is supposed to be. I am far from an “originalist,” but Article I and Amendment X strongly imply policy is meant to be decided, umm, politically, in the legislative arena.

I know: both parties (despite bemoaning “activist judges”) try to seek policy victories in SCOTUS by arguing that this or that law or Executive order is unconstitutional—and that the “right to privacy” articulated so elegantly in Griswold v. Connecticut had a profound (mostly progressive) legislative impact.

My point is simply that if Democrats put as much work into winning back legislative seats (so far so good) as they will into blocking President Trump’s next SCOTUS nominee that will greatly reduce their reliance on favorable SCOTUS decisions. They could even overturn many of those anti-abortion laws at the state level (not all of them, of course).

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I have previously called for cross-partisan dialogue—patriotic bipartisanship. After President Trump was elected, I also began proposing a “coalition of the center” to form in the Senate that would wield an effective veto over legislation, forcing broad compromises by both parties. Such a group could consist of “red-state” Democrats like Donnelly, Heitkamp, Doug Jones (AL—R+28.4), Manchin, Claire McCaskill (MO—R+15.9) and Jon Tester (MT—R+18.6); Independent Angus King (ME—D+5.9); and Republicans like Susan Collins (ME—D+5.9), Lisa Murkowski (AK—R+19.2) and, perhaps, Cory Gardner (CO—D+2.2).

Were this bloc (or even the smaller bloc of Donnelly, Heitkamp, Jones, Manchin, Collins and Murkowski) to insist, unequivocally, that President Trump select

…a consensus nominee to replace Kennedy. “[Senator Heitkamp] told the president that he has a chance to unite the country by nominating a true non-ideological jurist who could gain strong support from senators on both sides of the aisle, rather than create more divisions…”

…they would elevate the traditional “advice and consent” role of the Senate above partisan rancor and force both parties to compromise, in effect restoring the judicial nomination filibuster.

Now, this would infuriate the conservatives who voted for Donald Trump (and President Trump himself) solely for the opportunity to remake SCOTUS in their image (though they still “won” with Gorsuch). And it would disappoint the liberal activists who want every Senate Democrat to resist President Trump at every turn (though this is easily the least-worst nominee they will get in 2018). But those may the necessary costs of restoring civil order to our public discourse.

Plus, how poetically just would it be if that “non-ideological” jurist was…Merrick Garland!

Until next time…

[1] I received an A on both the paper and the seminar, with a special commendation by Professor Joseph Hamburger.