Those who discuss and debate politics are likely familiar with this term, which means “Republican in Name Only.” I’ve also heard this type of term, first used for Republicans in the mid 1990s, applied to Democrats (DINO), and even to Mormons (MINO). [The first Internet use I found is in a 2008 comment to a post about Harry Reid.]

I’ve been bothered by this term ever since I first saw it. I particularly dislike the MINO term. It assumes a definition of Mormon that is limiting, as if the only way you can be Mormon is to live our religion perfectly.

Of course, there is a possible accuracy to these terms. Sometimes members of a group are outside of the group norms. And there are certainly valid reasons why some groups have norms for determining who is a member and who is not. Most organizations have ways to define membership and many actively expel members who don’t agree with or don’t act according to the group standards. Mormons are generally familiar with the concept. We expel those who don’t meet specific standards, welcoming back those who change to again meet the standards. However, we also have some standards that, when broken, don’t lead to being expelled: Church members who smoke aren’t usually expelled, but those who join polygamous groups usually are.

Of course, religious organizations and political parties are quite different. While political parties do have some norms for what they believe–the party establishes a platform each election cycle–these norms are never binding as far as I can tell. Political parties have open membership–all you need to do to join a party is register to vote as a member of that party, or switch your registration to that party. These standards even have little or no control over politicians, except when they influence how the electorate votes. And since the electorate rarely has much knowledge of the party platforms, what it means to be a party member is reduced to public perception and is ill-defined, especially on the margins.

Of course, there are general perceptions about how to define a Republican and how to define a Democrat, but between the two, there is a certain overlap–”moderate” Republicans who are more liberal than “conservative” Democrats.

Given all this, can these “–INO” terms really mean anything significant? If anyone can join a political party, or get elected on that party line, and if the definition of the party itself is so fuzzy, how can we know if anyone really is a “RINO?”

Regardless of the definitional problems, it is the use of terms like “RINO” and “DINO” that is the problem. Given the fuzzy definitions of political parties on the margins, it seems nearly impossible to accurately define anyone as a “RINO” or “DINO.” Instead the way that the term is used, its clear that it is a pejorative term — a way of calling people names; of denigrating another. Its “I don’t agree with this fellow party member, so I’m calling him a RINO/DINO to discredit him.” Further, its “instead of arguing the issues, I’m going to call you names.” Perhaps that is typical for the political arena, but I have higher expectations of myself, and of most of my fellow Mormons.

In that religions context, I think calling someone a “MINO” is just as pejorative, although for slightly different reasons. Unlike in the political arena, defining a Mormon by what he should do is much clearer — in most situations the commands we should follow are very clear. Indeed, MINO could be a defined, accurate, clinical term, meaning roughly the same as “inactive” or “less active.” But even these latter the Church has tried to shy away from because of how members feel when they are characterized that way. And “in name only” carries a connotation implying that the person’s membership (Republican, Democrat or Mormon) is deceptive, which seems even more likely to offend.

And is use supports that contention. MINO is rarely used in a clinical, descriptive sense, that of someone who has strayed (unlike “less active,” which is used almost exclusively in a descriptive way.) Instead it carries the connotation that the “MINO” doesn’t belong, that he is less than other Mormons.

To be honest, you could be accused of being MINO simply for calling someone a MINO — because it is not a charitable or kind thing to do. I suspect that we are all MINOs — I doubt very much that anyone really lives up to their religious beliefs. We are all hypocrites. Why should we compound our hypocrisy through verbal attacks about others faithfulness?

Political arena or not, I can’t see any legitimate use for these terms. They aren’t going to change the target, nor will they change anyone’s mind about the target. They can only lead to defensiveness or verbal battles–the kind that no one wins.

I’d have to say that the use of these terms is KINO–kind in name only.

Photo belonging to James Neeley via Flicker

Tyler Cowan revisits the topic in a post today (HT: Sheldon). I vaguely remember someone in the bloggernacle posting on this in years passed, but my cursory search didn’t turn up much. So, as I’m curious what others make of the research, I thought I’d throw it out to the wolves again. Cowan quotes a new article that states in relevant part:

Washington (2008) finds that, controlling for total number of children, each additional daughter makes a member of Congress more likely to vote liberally and attributes this finding to socialization. However, daughters’ influence could manifest differently for elite politicians and the general citizenry, thanks to the selection gradient particular to the political process. This study asks whether the proportion of female biological offspring affects political party identification. Using nationally-representative data from the General Social Survey, we find that female offspring induce more conservative political identification. We hypothesize that this results from the change in reproductive fitness strategy that daughters may evince.

(Perhaps this plea is laughably in vain, but let’s avoid the banal partisan tit-for-tat).

While he did not remain an active Latter-day Saint in his later life, he nevertheless kept close ties with the Church and continued to self-identify as a Mormon, claiming that he was “Mormon born and bred, and it’s inside me… I prize my Mormon heritage and status.” More than that, throughout his adult life he served as an important intermediary for the Church on both political and religious matters.

Background and Public Life

Stew was the son of former Arizona Supreme Court Justice Levi S. Udall. He was born in the small town of St. Johns, Arizona in 1920 and attended the University of Arizona before leaving on a mission to the Eastern States in 1940. After his mission, Stew enlisted in the Air Force, serving as a B-24 gunner and flying fifty missions over Europe during World War II. Upon returning from his service, Stew attended law school at the University of Arizona, graduating in 1948. He also married Ermalee Webb that same year, his life-long companion with whom he had six children.

In the 1950s, Stew entered politics and was elected in 1954 to the U.S. House of Representatives, where he served until John F. Kennedy appointed him U.S. Secretary of the Interior in 1961 (after Stew helped turn the state out for him in the 1960 election). As a congressman, Stew was a strong supporter of environmental and civil rights legislation. Once appointed as cabinet secretary, he actively used his position to support environmental issues. Among his political accomplishments, he helped to guide numerous landmark environmental measures through Congress, including the Wilderness Act of 1964, the Land and Water Conservation Fund Act of 1965, the Endangered Species Preservation Act of 1966, the National Trail System Act of 1968, Solid Waste Disposal Act of 1965, the Wild and Scenic Rivers Act of 1968, and the Clear Air, Water Quality and Clean Water Restoration Acts and Amendments. He also helped to expand the National Park Service to include “four new national parks, six new national monuments, eight seashores and lakeshores, nine recreation areas, 20 historic sites and 56 wildlife refuges.”  Some of these additions include “Canyonlands National Park in Utah, North Cascades National Park in Washington, Redwood National Park in California and the Appalachian National Scenic Trail stretching from Georgia to Maine.”  As a result of these successes and his life-long advocacy of environment and conservation issues, Stew has become an icon of sorts within these movements. Indeed, his passing has brought with it a flood of condolences from leaders at every level of government.

After Johnson left office in 1969, Stew taught for a time, authored several books, and continued to champion environmental issues, leading a high-profile legal crusade on behalf of the victims of radiation exposure from Cold War-era nuclear programs.  While his lawsuits failed in court, they led to the enactment of the Radiation Exposure Safety Act in 1990 (which Stew helped to write), that compensated thousands of Americans affected by the exposure.

Of his public service, Stew said “I was taught that a person may aspire to nothing higher than to be a public servant.”  And this certainly was reflected in the lives of the Udall family, whose political reach has been tremendous. In addition to a father and an uncle who served on the Arizona Supreme Court, Stew’s brother Morris (“Mo”) was elected in Stew’s Congressional District after his appointment as Secretary of the Interior. Mo himself became a legendary force in politics, eventually challenging Jimmy Carter for the 1976 Democratic presidential nomination.  Stew’s son Tom was a five-term congressman from New Mexico who was elected to the Senate in 2008.  Mo’s son Mark was a five-term congressman from Colorado who was also elected to the Senate in 2008. Stew’s nephew Gordon Smith was a two-term Senator from Oregon. And Stew’s cousin, Rex E. Lee was Solicitor General during the Reagan administration.

Stew and the Church

Stew was the oldest son in a very active Mormon household (Stew’s dad was Stake President throughout his youth until he was elected to Arizona’s Supreme Court in 1946). Stew remained active himself until well into his twenties. In a fascinating interview with James W. Ure published in Leaving the Fold: Candid Conversations with Inactive Mormons, Stew talked at length about his relationship with the Church, noting that his parents had instilled in him a strong allegiance to the Church.

Stew spoke highly about his mission, saying “I look back on my missionary experience as fruitful experience. I got a lot out of it, and I came away with warm feelings toward the church.” He actively participated in institute while at the University of Arizona (both before and after the war), and cites two institute teachers, Lowell Bennion and Sterling McMurrin, as formative influences on his life. His wife Ermalee came from a similar Mormon background and they “had pretty much the same experience and attitudes with the Church… neither of us was ever devoted church-goers; we maintained our ties, but didn’t participate much.” While four of Stew and Ermalee’s six children chose to be baptized, Stew said they didn’t press the Church hard as parents “[s]o our children haven’t had strong ties with the Church, but they haven’t drifted over to other Churches.” Regarding his relationship with the Church in his later years, Stew said “I’ve never had any desire to sever any ties; in fact, some of them have grown stronger these last years.”

Stew’s strong connection with the Church was very cultural. When asked about his belief in the story of Joseph Smith and the gold plates, he said “I don’t go out of my way to wrestle with that—the kind of thing that to me is not the heart of Mormonism.” In assessing allegations of whether or not he was a “good Mormon,” he would say “I’m my own unique kind of Mormon and I’ll stay that way. So don’t you pass judgment on me, and I won’t on you.”

Political and Religious Point of Contact

While serving in political office, particularly during his time as a Cabinet Secretary and confidant to Presidents Kennedy and Johnson, Stew served as an ambassador and a point of contact for the Church within the administration. Stew accompanied Kennedy to his landmark speech at the Salt Lake Tabernacle in 1963, and in September 1964, while on a trip to the West Coast with President Johnson, he remembered helping to set up an unscheduled trip to see David O. McKay in Salt Lake: “President [Johnson] decided that he wanted to stop off that night or the next morning, I forget which it was, to see David O. McKay…. And this was all put together in a matter of a few hours, which really made him scramble. But he said, ‘I’d like to see him, let’s stop.’” (Incidentally, of this visit, President Johnson said “I could not fly over Utah without stopping to see President McKay… I always feel better after I have been in his presence.”)

In his interview with Ure, Stew spoke of counseling with some prominent Mormons during his career, and on occasion he would intervene on behalf of members and family. He proudly noted that he had a hand in starting Rex E. Lee’s career, “[Rex] was one of the first law clerks for [Supreme Court] Justice Byron White [who was] one of my friends.”

Stew also played a critical role in helping to spur a reconciliation between descendants of the Fancher-Baker party attacked at Mountain Meadows, descendants of John D. Lee, the sole person executed for the massacre there, and the Church. Stew’s mother was John D. Lee’s grand-daughter, and it was a legacy Stew said she always struggled with. After being approached by Verne Lee–an active Latter-day Saint and Fancher party descendant– about bringing the families together to help “bury the dead and bury the issue,” Stew said he went out of his way to help.  He even arranged a meeting with President Gordon B. Hinckley to ask the Church to be a part of the proposed reconciliation. These efforts culminated in the erection of a monument, paid for by the Church, at the site of the massacre in 1999, with a dedication ceremony involving descendants of both the victims and the perpetrators. At a special reinterment ceremony the day before the monument’s dedication, Stew, “with great emotion,” read a poem he had written years earlier and dedicated to the memory of his mother:

Blacks and the Priesthood

During the 1960s, Stew also lobbied the Church regarding its policy on blacks and the priesthood, first behind the scenes, then publicly. In 1961, he discussed the issue in a meeting with David O. McKay and the First Presidency.  That same year, he also wrote McKay’s counselors in the First Presidency, Presidents Henry D. Moyle and Hugh B. Brown, expressing his worry over the Church’s position: “I am deeply concerned over the growing criticism of our church with regard to the issues of racial equality and the rights of minority groups…. It is my judgment that unless something is done to clarify the official position of the church these sentiments will become the subject of widespread public comment and controversy.” In 1963, after David O. McKay declined an invitation by John F. Kennedy to attend a meeting of religious leaders to discuss his proposed civil rights legislation, Udall again exchanged letters with Elder Brown with his concerns. In 1967, Stew decided to go public with his concerns, publishing a letter to the editor in Dialogue urging that the priesthood restriction be lifted: “Every Mormon knows that his Church teaches that the day will come when the Negro will be given full fellowship. Surely that day has come.” Before the issue of Dialogue went to print, Stew sent a copy to David O. McKay with a letter saying: “I want you to personally know that I have expressed myself with humility and utter honesty– and always with the prayerful thought that my action will, in the long run, help, not harm, the church.” The letter earned Stew “very stern rebuking letters” from Elder Spencer W. Kimball and Elder Delbert Stapley (who also, incidentally, wrote Governor George Romney criticizing his public embrace of the civil rights movement). Stew nevertheless said he was “very proud of [the letter to the editor] to this day…. I made a statement, a statement of conscience.” In reflecting on the eventual lifting of the ban, Stew said “President Kimball, whom I consider the most inspired Mormon president of this century, did the right thing, and I’ve been enormously pleased by it.”

In Memoriam

Stew represents an earlier time in politics. He was always an example of integrity and sincerity, whether or not one agreed with the policies he advocated.  His Mormon upbringing informed both his work and his political views throughout his life.  Stew’s concern for both the environment and the less fortunate are reflected in his lifetime of public service and advocacy. While he did not actively participate a great deal after graduating law school, Stew remained close with the Church throughout his life and played a key role for the Church in several important developments and debates. At a time when there is increased media attention on Mormon Church and its politicians, Stew reflects well on the Church and leaves a legacy that can make Mormons proud.

A Utah County today’s residents would hardly recognize:

A onetime famed FBIman, Reed Ernest Vetterli, whose career could yield a dozen detective yarns, is in the middle of his hardest case: trying to get elected to Congress as a Republican in Utah’s heavily New Deal Second District. His platform: support the President in the war; get new blood into Congress…. Republican Vetterli, with State G.O.P. backing, practically has the nomination in his pocket; so has the Democratic incumbent, stocky, stodgy J. Will Robinson of Provo. But G.O.P. chances in the election are—according to the recent past—slim: many a former WPA worker has moved to the Second District for war work to strengthen the strong Democratic forces.

“Utah’s Vetterli,” Time Magazine, August 10, 1942

Vetterli later ran for Governor of Utah on the Republican ticket where Utah County again proved problematic. “In Utah County we are much concerned about the nominee for Governor.” (Deseret News, June 21, 1944). (Hat Tip: Sheldon)

Interestingly *both* the LDS and gay communities have plausible evidence to support the claims that they are the victim group.

The first major factor at play is that both communities have a long history of persecution. LDS persecution is well known around here. The most obvious example is the Extermination Order. (Yes, I know the Extermination Order followed on the Salt sermon and other sometimes aggressive acts by church leaders; it was still an unwarranted and targeted attack.) Other examples are legion, from Johnston’s Army to United States v. Reynolds. The Romney campaign put Mormons in the spotlight again, and national publications ran articles by Jacob Weisberg and Christopher Hitchens, mocking Mormonism. At present, church members are likely to feel, with some justification, that they will be criticized for their views from both the secular political left and the evangelical political right.

Persecution of LGBT (lesbian, gay, bisexual, or transgendered/transsexual) people is also well established. LGBT individuals are still regularly subjected to egregious harassment including physical assault, violent beatings, and death in some cases. They often face special limitations on their employment — they may not serve openly in the military, for instance, and in a number of jurisdictions they may be fired for their sexual orientation. They were told for many years that their orientation was a mental illness (the DSM only removed homosexuality from its list of disorders a generation ago), and they have been consistently subjected to unequal treatment under law — recall, for instance, that it was only in 2003 that the Supreme Court struck down laws criminalizing gay sex.

Both groups have been regular targets for media attacks, and continue to struggle to shake negative stereotypes. Mormons are stereotyped as polygamists, gays as child molesters. Because both groups have a lengthy history of persecution, both groups have a finely tuned radar for anything that could look persecution-like.

The second major factor is that both communities have been unusually successful, in some ways, at overcoming their minority status and achieving some power in majority society. Both groups are [edit to add: perceived as] relatively affluent in comparison to the rest of society. Both groups have achieved high profile success stories. We Mormons count the Senate majority leader among our number, as well as major presidential candidates. Mormons wield immense political power in Utah and some political power in many other western states. Gays and lesbians have become highly visible in culture and arts, and include a small but growing number of political supporters as well.

Thus, it is plausible not only for each group to construct narratives about its own difficulties, but also to construct narratives about the other group’s unusual power.

This creates the backdrop for a variety of misunderstandings. Scholars have long noted that oppressed minority groups can tend to see all of their experiences through the lens of oppression. For instance, Lisa Ikemoto (1993), writing about African-American/Korean-American conflict in Los Angeles, notes that both sides see their own experiences through the lens of the white supremacist aggression which their own community has suffered. “The stories of intergroup conflict came from the master narrative of white supremacy,” writes Ikemoto. “We interpret our experiences by reference to familiar stories about the world.”

And it is clear that both Mormons and gays interpreted Prop 8 and its fallout as an example of an attack by powerful outsiders on their own vulnerable and persecuted community. Gays viewed the attack as one on their civil rights in marriage, and framed Prop 8 as an attempt (ultimately successful) to take away their hard-won civil rights. In the context of prior history of official and unofficial anti-gay bigotry and discrimination, this narrative was easy to construct. The LDS church was placed in the role of oppressor, and the gay community reacted accordingly. The church’s actions, and its high profile, made it an easy fit into the established and historical narrative of gay persecution.

Meanwhile, church members saw a different kind of attack. Church members viewed themselves as innocent citizens expressing their right to vote on a political matter. Some church members lost jobs over Prop 8 fallout, temples were picketed and in some cases vandalized. This was also placed in the context of prior LDS persecution. Anti-Mormons in the past had violently suppressed the Mormon vote. This narrative, well-known among church members, is one where Mormons courageously seek to participate in the democratic process, only to be thwarted by violent mobs. Temple demonstrations following Prop 8 were quickly placed into that narrative structure, which became a story of gay mobs seeking to block the valid democratic actions of church members.

The fact is, the impact on both groups was much less than the rhetoric would suggest. As I have written elsewhere, the removal of the marriage label, while it created important psychic and personal losses among LGBT people, did not remove any significant legal rights, and is thus really not in the same league as most prior anti-gay discrimination. Similarly, the noisy but generally non-violent protests at temples were nothing like the sack of Far West or imprisonment of Mormon leaders. Ultimately, both actions were largely symbolic rather than substantive in their effects.

Both communities, however, saw these actions through the lens of past oppression narratives. And both communities overreacted. (And both claim a plausible reason for their reactions — church members view themselves as beleaguered defenders of traditional marriage, while LGBT activists see themselves as beleaguered defenders of civil rights for an unpopular minority.)

Thus, this is a conflict in which both communities are able to (1) create a narrative in which they claim minority status and victim status for their own group, (2) within that narrative, discount the minority status of the other group, and (3) construct a plausible argument within their own group narrative showing that it was the other side who fired the first shot.

This creates a particularly tense situation. There are a number of people of good faith on both sides of the debate, but it is not clear that any detente will be able to be reached in the near future. The fact that both groups have cast the issue as one of minority oppression means that any resolution will need to address not just one but two often contradictory oppression narratives.

Of his differences with Hatch, Kennedy once said: “We have a difference in terms of perhaps how we are going to achieve the objectives, but I don’t really feel that I have a difference with Orrin in terms of what the objectives ought to be. If you build upon that kind of understanding and respect, you can get a lot of things done.”

Kennedy’s relationships with these men were clearly much deeper than any sort of convenient political arrangement though.

Kennedy was one of the keynote speakers at a Memorial Service for Owens after his unexpected passing in 2002. Owens’ son said that Kennedy “gave a loud, funny storytelling talk that meant a lot to our family.”

When Smith’s son committed suicide in 2003, Kennedy reached out to him repeatedly, approaching him with tears in his eyes, often unable to speak. Kennedy and Hatch went on to co-author the introduction to a book Smith wrote in 2006 that reflected on his son’s death.  Upon hearing of Kennedy’s passing, Smith said: “I consider it one of my life privileges to have worked with him across the aisle on many issues. It has been a pleasure and a privilege knowing him.”

In the wake of Kennedy’s death, Hatch penned a column in Newsweek, in which he noted:

I remember a time in my life when I was falsely accused of impropriety and was being savaged in the press. At the same time, my father, Jesse, was dying, and he slipped away in the midst of this tumult. Sadly, many of my Senate colleagues avoided me until I was cleared of all wrongdoing. But not Ted Kennedy. He called and consoled me, talking about his struggle to come to terms with the death of his father and brothers. Concerning the press battles, he said, “Ah, Orrin, everyone knows you did nothing wrong. Everything will work out.” He was the only one, Republican or Democrat, who did that.

Hatch also spoke at Kennedy’s Memorial Service two days ago (see here, here and here) and shared a number of touching anecdotes regarding “his dear friend,” a couple of which I thought were relevant to recount here.

The first involved Hatch’s former administrative assistant, Frank Manson, who had just become the Mission President of the Boston, Massachusetts mission. Hatch said Manson called him soon thereafter requesting several favors: whether Hatch would be willing to address the mission’s 200 missionaries, whether he would ask Kennedy to come speak as well, and whether he could ask Kennedy to secure Faneuil Hall for the meeting. Hatch said he’d try:

“On one occasion after a particularly late night in the Senate” Hatch said Ted Kennedy and Chris Dodd were ‘feeling no pain’ (a little tipsy), and while Hatch was walking off the Senate floor, “Teddy put his arm around me and he said, oh, Orrin, I want you to come up to Hyannis Port and I want you to go sailing with me. Yes. You want to do this? Yes, I want you to do that. Yes. I said, now, Teddy, I have a favor to ask of you. He said, you do, so what’s that? I said do you remember Frank Manson, my administrative assistant? He said oh, yes, good guy, good guy.

“I said, well, you know, he’s asked that you and I come and speak to his — and I said he’s now the mission president in the Mormon church, over 200 Mormon young missionaries in Boston, Massachusetts. My hometown, and I said yes…. well, how about he would like you and me to come up and speak to his 200 young missionaries. He said done. Just like that. I said, well, I have another favor to ask of you. What’s that? I said, well, he would like you to get Faneuil Hall. He said done.

“So the next day I got into the office and I got this nice letter for Teddy. And I got it over to him. And I saw him later in the day and he’s holding that letter and his hands were shaking. And he said, Orrin — he said, what else did I agree to last night? …After telling these things, my eyes start to water, my nose starts to run. It was just a mess, I tell you. But in any event, Teddy Kennedy and Orrin Hatch appeared before 200 young Mormon missionaries in Faneuil Hall and they will never forget the tremendous altruistic talk that he gave to them on that day.

“Well, all I can say is it was really something. He didn’t try to weasel out of it. Instead, he produced the hall and he gave that beautiful speech. I was impressed as usual. And those missionaries will never forget that. And though they were of a different faith, he commended them for their willingness to serve a cause bigger than themselves and thanked them for their selflessness. This is just one example of the graciousness of my dear friend, Ted Kennedy.”

The second involved the controversy surrounding the completion of the Boston Temple:

“I was approached by several people working in the temple and informed that the city would not allow a spire to be placed on the top of the temple with an angel on top of it as is customary on Mormon temples.”I immediately called Ted and asked for help. Not long after that conversation, he called me back and said, ‘All of western Massachusetts will see the Angel Gabriel on the top of the Mormon temple.’

“Though I was tempted to leave it alone, I had to inform Teddy it was actually the Angel Moroni, a prominent figure in the LDS faith. And at that point, Teddy replied, does this mean I’m going to get another Book of Mormon for Christmas? Of course he did.”

Whatever one’s views were of Kennedy’s politics, I think we can all join in mourning the passing of an elder statesman who gave nearly fifty years of public service to the Senate and who fought tirelessly during that time in support of many policies he intended to aid the poor and less fortunate, often reaching across the aisle to build consensus in order to do so.

[Please remember to be respectful and civil in your comments]

The New Hampshire law was passed by the legislature, and it includes extensive protections for religious organizations. Thus, two of the common themes in the church’s Proposition 8 campaign — that same-sex marriage is an antidemocratic imposition by judges, and that same-sex marriage will force churches or church-owned institutions to accept same-sex marriage contrary to their doctrine — do not seem to apply in the New Hampshire case. One suspects that this is the future of the movement — democratically passed marriage statutes with broad respect for religious organizations.

As they say in New Hampshire, live free or die.

Which raises the question: How would Jesus judge?

Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.

-Matthew 7:12

He shall have judgment without mercy, that hath shewed no mercy; and mercy rejoiceth against judgment.

-James 2:13

But thou, O Lord, art a God full of compassion, and gracious, longsuffering, and plenteous in mercy and truth.

-Psalm 86:15

14 Therefore, my son, see that you are merciful unto your brethren; deal justly, judge righteously, and do good continually; and if ye do all these things then shall ye receive your reward; yea, ye shall have mercy restored unto you again; ye shall have justice restored unto you again; ye shall have a righteous judgment restored unto you again; and ye shall have good rewarded unto you again.

-Alma 41:14

I think it’s a pretty good bet that Jesus would judge with empathy. What do you think?

**

President Obama said, in the statement that helped launch the discussion,

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.

Well, at least one politician is looking for someone who might judge like Jesus would.

Nevertheless, let us appoint judges, to judge this people according to our law; and we will newly arrange the affairs of this people, for we will appoint wise men [ed: or wise Latina women?] to be judges, that will judge this people according to the commandments of God.

-Mosiah 29:11

**

Now, I realize that judges have an important job, and that deciding who is best qualified for the job involves some balancing of values. A candidate may be very strong in one area but not strong in another; I don’t mean to suggest that empathy is a trump card. Obviously there are other important considerations.

But let’s not lose track of the basics. Empathy is a very good thing. Full stop.

Ceteris paribis, a judge with empathy is always better than one without. And a person with empathy is better than one without. Empathy is a great, wonderful, strongly positive, Christlike value, and we could all stand to have more of it. Even judges.

Let us speak up, loudly, against the profoundly unChristian idea that empathy is somehow a bad thing.

And shame on you, Orrin Hatch, for your own remarks disparaging the idea of empathy in a judge.

Initial caveat: I’m not a con law expert; I do think that I have an adequate understanding of the legal standards here, but I’m happy to take suggestions or clarifications on the issues.

Facts

Unless you’ve been living in a cave, you know the basic facts by now. Jay Bybee worked in the Justice Department’s Office of Legal Counsel from late 2001 to early 2003. In 2002, the OLC was asked to provide legal advice on detainee interrogation. The result was a series of memos which suggested that many actions, including waterboarding, were not be covered under the legal definition of torture. The primary author of the memos is believed to be OLC attorney John Yoo. One of the memos, authorizing certain types of actions, was signed by Bybee (and came to be known as the Bybee Memo). In early 2003, Bybee left the OLC when he was appointed to the Court of Appeals for the Ninth Circuit.

In 2004, the memos were discussed extensively and eventually posted online by the Washington Post. Several commenters stated that the legal conclusions in the memos had flimsy support, and that the memos were ex post attempts to justify existing torture policies, rather than legitimate attempts to answer legal questions ex ante. At the time, various proposals for legal or professional actions against torture memo authors (including Bybee) were discussed; nothing came of them.

Recent developments have put the issue back into the spotlight. Opinion on the memos had been shifting slowly, as the extent of the damage caused to the war effort became clear. The process picked up steam in the past year, which saw Democrats pick up control of the Presidency and both houses of Congress. In one of its first acts following the Presidential inauguration in January 2009, the OLC formally repudiated the prior memos. The Obama administration also released additional memos and details, bringing renewed attention to the issue.

Relevant law

First off, remember that impeachment means bringing a formal claim against an official (such as a judge); however, this just sets the trial process in motion. From there, the official must be convicted in order to be removed.

Another initial note, the law on impeachment is extremely spotty and hard to define, because there have been so few impeachments. There’s not a lot of precedent here.

The rule seems simple enough. The basic rule is that Federal judges are subject to impeachment for “treason, bribery, or other high crimes and misdemeanors.” However, this turns out to be a ambiguous in practice.

On the face of it, that description sounds like it refers to crimes. However, the standard has been interpreted much more broadly. Judges have been impeached for non-criminal reasons — insanity, drunkenness, and even disagreement with case rulings. (And I think that there are good reasons to view the standard more broadly than crime. I don’t _want_ an insane person to be permitted to continue as a judge, even if insanity isn’t a crime.)

However, those impeachment cases are two centuries old. No judge has been impeached in the past 200 years for anything but alleged criminal action, and attempts to impeach judges over the content of their opinions have not succeeded lately, and have in fact been very unpopular.

(Here, the usual alignment of politics and views on founding fathers views may be reversed. The founders clearly had no problem impeaching for all sorts of offenses; but later generations have viewed the standard more narrowly. To some extent, it is Bybee’s critics who are relying on founding-era cases, while his defenders cite later precedents.)

Arguments

What are some of the relevant arguments for or against impeachment?

1. Criminal action

This is the easy one. If Bybee is convicted of a crime for his actions, then the case for impeachment immediately becomes much stronger. However, at present it appears that there is little likelihood of criminal prosecution for his actions regarding the torture memo.

2. General unfitness

Since a conviction is unlikely, many calls for impeachment have focused on the idea of general unfitness. For instance, the NYT editorial notes,

In one of the more nauseating passages, Jay Bybee, then an assistant attorney general and now a federal judge, wrote admiringly about a contraption for waterboarding that would lurch a prisoner upright if he stopped breathing while water was poured over his face. He praised the Central Intelligence Agency for having doctors ready to perform an emergency tracheotomy if necessary.

That’s not a claim of criminal action, but of very very bad judgment. Similarly, in its call for impeachment, the editorial states that, “These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him.”

But this raises the question of whether general unfitness should be an impeachment offense. And, as noted above, this isn’t really clear. On the one hand, there are some precedents for this. On the other hand,they’re all 200 years old. In the past two centuries, impeachment has come to be equated with criminal action. An impeachment for non-criminal action would push the boundaries of impeachment law significantly. No judge has ever been impeached for legal opinions written prior to swearing in.

Impeachment seems possible on these grounds, but not particularly likely; conviction seems even less likely.

3. Deception

Another possible ground for impeachment is deception. Bruce Ackerman has argued that if Bybee’s participation in the creation of the memos was known at the time of his confirmation, he never would have been confirmed. Patrick Leahy has made just this argument recently, stating that “if the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed.”

It’s not clear how strong that argument is. During his confirmation hearings, Bybee claimed executive privilege for memos written while at the OLC, and he was appointed anyway. He didn’t tell any known outright lies under oath. It’s not clear that he had a duty to say more than he did.

4. Retroactivity

Finally, there may be concerns with impeaching Bybee for pre-appointment actions. Frank Bowman at Slate has argued that this may violate the “during good behavior” language of Article III, because Bybee’s actions took place prior to confirmation. .

Conclusions

I’d say that Bybee is unlikely to be impeached and even less likely to be convicted.

However, he’s become a political lightning rod. Leahy has stated that “the decent and honorable thing for him to do would be to resign.” That may be the politically astute option, too.

Other issues

Are there broader ethical or moral issues at play as well?

In 2004, Times and Seasons guest blogger Dan Burk stated, “I cannot believe that the practice of torture is acceptable to anyone who claims to be a disciple of Jesus Christ,” kicking off a lengthy discussion of whether it would ever be acceptable for a church member to legally support these kinds of actions. Those questions remain as current today as they were in 2004. It’s highly uncertain whether Bybee’s actions are consistent with LDS values. I think that there can be some room for disagreement on the topic, and he can be defended on some grounds; but it’s also true that a strong moral case can be made against Bybee. (Peggy Fletcher Stack wrote about this divide in the Salt Lake Tribune in 2004.)

What should a church member do, when asked to condone torture? At least one LDS soldier chose to kill herself rather than participate in torture. I don’t know that that’s always the answer; but there are serious problems with condoning torture. Dan Burk asked, “at what point does a Latter-Day Saint governmental official have, like Mormon of old, the moral obligation to resign his position rather than participate in the conduct of his superiors?” Five years later, that’s still the question we have to ask.

That was my first memory of Bill Orton. Over the years there would be more, as Rep. Orton remained our Congressman through high school and into my first year of college. He managed to win re-election handily in both 1992 and 1994, surviving the tidal wave that hit congressional Democrats that year, and he likely would have won in 1996 had it not been for the residual anger Bill Clinton’s decision to unilaterally designate the Grand Staircase-Escalante as a National Monument produced among Orton’s constituents, a decision made with essentially no notice to Orton or the rest of Utah’s congressional delegation. As a result, Orton lost narrowly to Chris Cannon in the ’96 election, though I remember him performing very strong in a debate against Cannon held at Brigham Young University a few weeks before the election (the first and only political debate I’ve ever attended). In 2000, Orton made another run for office, this time for governor with education being the focus of his platform. Despite long odds against a popular governor, Orton made a race of it, eventually losing 55-42%, a marked improvement for Democrats from Governor Leavitt’s staggering 75-23% margin of victory in 1996. A tax attorney by trade, Brother Orton returned to the practice of law after his electoral defeats, but stayed active in the community and served as a delegate at the Democratic National Convention last year where he cast a vote in favor of Barack Obama as the Democratic nominee. He also remained active in the Church, serving in numerous callings.

My lasting impression of Brother Orton can only be that of a good, decent and dedicated individual, who was both civic-minded and politically engaged. Not overly-partisan, Orton was a political moderate who helped to found the conservative “Blue Dog Caucus” in the House of Representatives after the Democrats’ shellacking in ’94. Despite ideological differences, he was well-liked and respected among his Republican counterparts in Utah. In the end, I believe he not only left an indelible mark on the state of Utah, but left it a better place as well. At a time when Democrats in Utah had become increasingly scarce — especially Latter-day Saint Democrats — he helped the party by remaining a competitive candidate and bucking the stereotype many in Utah had of Democrats. In a 1998 interview with the Salt Lake Tribune, Elder Marlin K. Jensen may well have been alluding to Bill Orton, among others, when he spoke of “the notion that may prevail in some areas that you can’t be a good Mormon and a good Democrat at the same time,” and said that “There have been some awfully good men and women who have been both and are both today. So I think it would be a very healthy thing for the church — particularly the Utah church — if that notion could be obliterated.” Bill Orton did his part to help obliterate that notion and spur a more robust dialogue on public policy in Utah, and for this reason both the Republican and Democratic parties in Utah are better today.

Bill Orton’s passing this weekend at the relatively young age of sixty is a loss for all Utahns. My heart aches for his wife and two young teenage boys, and I pray that they will be comforted during this difficult time. If you have any thoughts or memories about Bill Orton you’d like to share or if you simply wish to extend sympathies to his family and friends, feel free to do so here.