Political Blunder-Judicial Crisis

While the U.S. Presidential race gets most of the media attention, one of the biggest political blunders of 2016, and perhaps one of the most historic mistakes ever made by the U.S. Senate appears to have fallen off the radar. Earlier this week U.S. Senator Tammy Baldwin (D-Wis.) returned to her hometown to give a talk to the American Constitution Society’s kick-off event for its new Madison Chapter, in which she presented her concerns about the Senate Republican majority’s decision to refuse to fulfill its Constitutional duty to give advice and consent on President Obama’s nomination of Judge Merrick Garland to fill the now 7 month old vacancy on the U.S. Supreme Court.


Senate Majority Leader Mitch McConnell announced before President Obama nominated Judge Garland that the Senate would neither hold hearings nor vote on any nomination made by the President to fill the vacant seat. His excuse was premised on the argument that the next President should choose the next Supreme Court Justice. Beyond the abdication of the Senate’s Constitutional duty under Article II to provide advice and consent to judicial nominations, McConnell’s blunder was apparently based on the likely mistaken assumption that a Republican would win the Presidential election and the Senate majority would remain with the Republicans. However, it was McConnell’s very blunder that exacerbated the likelihood that neither plan would come to fruition and that the next Supreme Court Justice will likely be nominated by Hillary Clinton and confirmed by a Democratic Senate majority. If that scenario comes true, while the Republicans could have declared a small victory with President Obama’s nomination of the very moderate Judge Garland, Hillary Clinton will be free to nominate a far more progressive Supreme Court justice instead.

It is important to note that McConnell’s political blunder would never have been sanctioned by our founding fathers. As Alexander Hamilton wrote in The Federalist Papers No. 76, by vesting the appointment power in the President, rather than Congress, the founders sought to avoid having appointments determined by,

the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.

He went on to say that in assigning the Senate the more limited role of advice and consent to presidential nominations, the founders believed that it was,

not likely that [the Senate’s] sanction would often be refused, where there were not special and strong reasons for the refusal. [Those] special and strong reasons [included] the appointment of unfit characters from State prejudice, from family connection, from personal attachment or from a view to popularity.

Of course, none of these reasons apply to the highly respected Judge Garland, and it is worth noting that Sen. McConnell made clear that it did not matter whom President Obama nominated. The Republican obstruction would be total and complete regardless of the merits of the nomination.

Sen. Baldwin pointed out that the Republican obstruction of President Obama’s judicial appointments goes much further than one crucial nomination to the Supreme Court. Close to home, she pointed out that President Obama’s nomination of Don Schott to the Seventh Circuit Court of Appeals has also been obstructed despite being vacant since January 2010. As of now, 77 of 673 U.S. District Court judgeships (11%) are vacant, twice as many as under President George W. Bush at this point in his presidency and 50% more than under President Clinton and President George H.W. Bush at the same point in their presidencies.

As this chart points out, the  Senate Republican obstruction of President Obama’s appointments is extreme and unprecedented.

Number of Judicial Confirmations During Final 2 Years in Office

  • President Ronald Reagan: 85
  • President George H.W. Bush: 122
  • President Bill Clinton: 73
  • President George W. Bush: 68
  • President Brach Obama: 20

In Chief Justice Roberts 2010 Year-End Report on the Federal Judiciary, he made clear that,

a persistent problem has developed in the process of filling judicial vacancies…This has created acute difficulties for some judicial districts. Sitting judges in those districts have been burdened with extraordinary caseloads….[There is] an urgent need for the political branches to find a long-term solution to this recurring problem.

A tie vote on the Supreme Court means the lower court decision is upheld and is a monumental waste of time and money for the parties attorneys and Supreme Court justices. Important issues such as public unions and immigration have been stalled due to tie votes due the Senate Republican refusal to fill the empty seat and more ties may occur in the current October session of the Supreme Court.

History will be the ultimate judge, but thus far, it appears that Senator McConnell and his Republican Senate colleagues may have made one of the biggest political blunders in history, and in the mean time denied justice to thousands of Americans waiting for their day in court.


For more information on how I can help you accomplish effective, progressive systems change contact Jeff Spitzer-Resnick by visiting his website: Systems Change Consulting.


Ageism Rears its Ugly Head

My first job as a young attorney at the Center for Public Representation was as an advocate for the elderly.  My youngest clients during those years were 60 years old and I represented many clients who were over 90.  I learned a lot about aging and the wisdom that comes with it from many of my clients.  In addition, these clients also taught me that age is not just a number.  It is an attitude.  I represented clients in their 60s who were suicidally depressed, as well as clients in their 90s who were vital and vigorous.  During those years, a colleague gave me a wonderful book of photographs of senior athletes entitled, “Growing Old is Not for Sissies.” growingold2 old

Among the panoply of federal civil rights laws is the Age Discrimination in Employment Act (ADEA), which Congress passed in 1967, prohibiting setting arbitrary age limits regardless of potential and,

to promote employment of older persons based on their ability rather than age.

Due to states’ rights under our Constitution, the ADEA does not apply to state judges, and 31 states have mandatory retirement ages between 70-90 years old (with most set at 70 or 75), despite absolutely no evidence that these mandatory retirements improve our judiciary.

Wisconsin has a murky history on this issue. Wisconsin used to have a mandatory retirement age for judges and Supreme Court justices. From 1955 to 1978, judges and justices faced mandatory retirement at age 70. Since 1977, the Wisconsin Constitution has authorized the legislature to impose a maximum age of no less than 70, but the legislature has not done so, resulting in no retirement age in effect.

Now, a Wisconsin legislator, Rep. Dean Knudson (R-Hudson), wants to set a mandatory retirement age of 75 based on this nearly 40 year old stale authorization.  His statement to the media mentioned nothing about how this might improve our system of justice.  Chief Justice Shirley Abrahamson notes that,

To the extent that either enactment affects presently sitting judges and justices, it ignores and overturns the vote of the people. The people elected the members of the judiciary for a fixed term and a set office.

If this bill passes, it would require the immediate retirement of Chief Justice Abrahamson and Justice Patrick Crooks, followed by the retirement of Justice Roggensack in July of 2015, despite recently being re-elected to serve until 2023, who would then be followed by the retirement of Justice Prosser in 2017, despite  being elected to a term that does not expire until 2021.  While I have certainly been critical of the dysfunction of the current Wisconsin Supreme Court, arbitrary age based retirements of 4/7 of the court in the next 3 years, promises only to politicize the court further by accelerating high stakes campaigns for these coveted seats.

There are better ways to reform a highly politicized state judiciary, including independent merit selection, a form of which is in place in 21 states.  Indeed, instituting mandatory retirement means more judicial campaigns, bringing more campaign cash into our judiciary, which has demonstrated skewed results from judges who are afraid of how their decisions will be portrayed by their opponents in campaign ads.

As our nation struggles to overcome pervasive racism, let’s not add ageism to further corrupt our judiciary.

For more information on how Jeff Spitzer-Resnick can help you accomplish effective, progressive systems contact him through his web site: Systems Change Consulting.

Stop Burning Bridges

As we all watch our dysfunctional Congress fail to carry out its most basic duty of passing a budget year after year, and we see divisive political battles in states like Wisconsin, where police arrest peacefully singing protestors resulting in the filing of 15,000 complaints against the Capitol police, it is worth considering whether both sides of the political aisle’s current strategy of vilifying each other achieves the goals they seek. Cynics who believe that politics is all about power and has little to with actual policy may believe that burning bridges with the other side is the best way to fire up their loyal troops.

But for those who seek genuine, long-term systemic change to improve our society, whether on a local, state or national level, burning bridges through name-calling, personal insults and other forms of vilification, will at best, provide short-term emotional satisfaction, and short-term political victories.  Perhaps the worst case example of name calling is through comparing politicians to Hitler or Nazis.  Remarkably, this unfortunate pattern exists on both sides of the aisle, with the left making absurd comparisons between President George W. Bush and Hitler, and the right using the same vilification against President Obama.

Long term systems change happens when society at large believes it should happen and politicians are convinced that blocking such change will result in their loss of power.  Indeed, the opposite is also true.  Do those who invoke the ultimate Hitler insult against a sitting President, or any other politician in power, actually believe that they can work with supporters of the sitting President effectively?  In addition to the fact that such absurd comparisons insult the memories of the millions slaughtered by Hitler, they also ensure that partisan sniping continues and substantive progress on policy grinds to a halt.

For too many, when they disagree with whomever is in power at the time, they believe that they must oppose all that they stand for and use whatever arguments and tactics, no matter how absurd, to oppose that political leader.  For all the appropriate opposition to Gov. Scott Walker’s attacks on public employee unions, suggesting a comparison to Hitler is not only absurd, but makes it impossible to work with him and his allies.

Thus, in my own work, I have spent my entire career working with politicians on both sides of the aisle.  I have avoided joining any political parties, which has eased my ability to work with whomever is in power. While I certainly agree with some political leaders more than others, and vote for those whose policies I support, I studiously avoid personal attacks and seek to find common ground with whomever is in power while avoiding burning bridges with those out of power.  The simple truth is that power is always transitory and good advocates know that they always want to be able to influence those in power.

So what should an advocate do when faced with political leadership that generally stands for views the advocate opposes?  

  • First, by all means, the advocate should clearly state opposing views, but those views should be articulated intelligently and respectfully, without burning bridges.
  • Second, seek common ground on issues that the advocate and the political leadership both support.  For example, along with many other advocates, I was able to work with both Republican and Democratic leadership during the highly divisive 2011-12 legislative session and obtain Gov. Walker’s signature on Act 125, which passed the legislature unanimously and now protects Wisconsin school children from inappropriate use of seclusion and restraint.

This picture shows how advocates who refuse to burn bridges can work with both sides of the aisle for the common good as the bill’s lead sponsors Democratic Sen. Julie Lassa and Republican Sen. Luther Olsen join me and other advocates to applaud Gov. Walker as he signed Act 125 into law to protect vulnerable children.


For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Procrastination Nation

As our nation and the entire world breathes a collective sigh of relief that the United States will not default on its debts for the moment, one must wonder if the world’s only superpower, has earned a new moniker, Procrastination Nation. 

The dictionary definition of procrastination is:

To postpone or delay needlessly.

As James Surowiecki wrote in his article aptly entitled, Later, a few years ago in the New Yorker,

the percentage of people who admitted to difficulties with procrastination quadrupled between 1978 and 2002. In that light, it’s possible to see procrastination as the quintessential modern problem.

The question is whether our federal government should be modeling such behavior when it is so remarkably unproductive.  Indeed, Surowiecki goes on to point out that,

Each year, Americans waste hundreds of millions of dollars because they don’t file their taxes on time. The Harvard economist David Laibson has shown that American workers have forgone huge amounts of money in matching 401(k) contributions because they never got around to signing up for a retirement plan. Seventy per cent of patients suffering from glaucoma risk blindness because they don’t use their eyedrops regularly. Procrastination also inflicts major costs on businesses and governments.

Indeed, this current federal shutdown has cost the nation billions and its full cost has not been totaled yet.  As the New York Times reports,

The two-week shutdown has trimmed about 0.3 percentage point from fourth-quarter growth, or about $12 billion, the forecasting firm Macroeconomic Advisers, based in St. Louis, recently estimated. Standard & Poor’s is more pessimistic, estimating that the shutdown will cut about 0.6 percent off inflation-adjusted gross domestic product, equivalent to $24 billion.

It would be one thing if the current Congressional dysfunction was a one-time rare occurrence, but sadly it has become a pattern of procrastination causing long-term economic harm, in addition to loss of standing in the world.  A new report, The Cost of Crisis-Driven Fiscal Policy.  This report concludes that,

Since late 2009, fiscal policy uncertainty has…lowered GDP growth by 0.3 percentage points per year, and raised the unemployment rate in 2013 by 0.6 percentage points, equivalent to 900,000 lost jobs.

Very few good decisions are made by panic.  As a nation we can do better. We must do better unless we want the whole world to just consider us the, Procrastination Nation.  


Rather than continue this Great Dysfunction, our nation needs:

  • Real statesmen who are genuinely want to govern for the common good, not just pressmen seeking to take temporary advantage of the next sound bite;
  • Consensus Driven Leadership instead of a divide and conquer mentality; and
  • The collective will to Get to Yes, rather than constant bickering and fighting.

It is clearly easier said than done, but voters must demand it, or our nation will continue to suffer the ignominy of being known as a second rate Procrastination Nation.

For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Pressmanship: The Opposite of Statesmanship

As our nation watches our federal government sputter to a halt with the rest of the world wondering whether we will risk the world’s economic health for the purpose of scoring political victories, I continue to lament the lack of statesmanship, which is so very hard to find these days, as I wrote about previously.  Indeed, every day, regular Americans are impacted by the Congress’ failure to pass a budget.  Whether it is closure of local VA offices, the inability of farmers to get the information they need to make important planting and harvesting decisions, or the myriad of other large & small impacts both here and abroad, perhaps the biggest impact is the worldwide loss of respect for our nation’s ability to govern itself.

While the pundits and politicians continue to cast barbs at each other, I have been searching for the word that would best define the current paralysis plaguing our federal government.  I have been searching for the word that is the opposite of statesmanship. Remarkably, the English language does not have a word that is a true antonym for statesmanship.

Some have claimed that the Founding Fathers set up our government of checks & balances knowing that there would be conflict, thereby reducing the chances of a temporary Congressional majority or a demagogue of a President ruling by fiat.  However, as James Madison stated quite clearly in Federalist Paper # 10, entitled, The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection, 

Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.

Madison also lamented about statesmen:

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.

But he certainly did not envision a Congress that was prepared to violate the Constitutional requirement to pay its debts!

My search for the opposite of statesmanship finally bore fruit in an article from the London Times from 1852, entitled, Pressmanship and Statesmanship.  While the article may be somewhat outdated for the 21st century, the word pressmanship seems to be what our federal leaders are engaged in: battling for sound bites in the press to gain political advantage, rather than acting as statesmen in the national interest.


For our nation’s sake, we can only hope that our nation’s leaders will start acting more like statesmen then pressmen.  If not, perhaps the voters will elect more statesmen in the 2014 elections and boot out the pressmen so the storm clouds can lift and the sun can shine on our nation’s Capitol.

For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Systems Change Requires Inspiring Action

Whether it is due to government dysfunction, lack of hope, or a variety of other reasons, it is often difficult to inspire people to join together to advocate for systemic change. Recently, at the J Street national conference, I had the fortune to attend a workshop conducted by a Palestinian, Nizar Farsakh, of The Leading Change Network.  Mr. Farsakh discussed his utter loss of hope as a Palestinian living in the occupied territories, but then told the story of watching Hamas militants shoot a 10 year old boy, which rather than depressing him further, inspired him to dedicate his life to using positive and peaceful tools to advocate for systemic change.

Farsakh went on to explain that many people have one or more of the following inhibitors which prevent them to take action to change the system which oppresses them.

  • Inertia
  • Apathy
  • Fear
  • Isolation
  • Self-doubt

Fortunately, each of these inhibitors can be overcome by motivators.

  • Urgency overcomes inertia
  • Anger overcomes apathy
  • Hope overcomes fear
  • Solidarity overcomes isolation
  • Knowing you can make a difference overcomes self-doubt

For many, of course, it is much easier to say these things than do them, especially if one or more of the inhibitors is rooted very deeply.  Therefore, it is essential to develop a strategy for systems change.

The New Organizing Institute has an on-line toolbox to help those interested in organizing for systemic change.  One of their trainings, on Theory of Change.  One key element of that training is the lesson that:

Strategy is turning the resources you have into the power you need, to win the change you want.

This can be applied to any system that requires changing and is the key to successfully accomplishing your systems change goals.

For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Consensus Driven Leadership

As I have previously written, our political system has devolved into a state of Great Dysfunction, such that political leaders, such as Speaker of the House John Boehner and Wisconsin Governor Scott Walker, seem to thrive on conflict rather than actually reaching across the aisle to resolve problems faced by the people who elected them.  At the national level, Speaker Boehner persists in allowing the House of Representatives to vote over 40 times to repeal the Affordable Care Act, even though he knows that such votes have no chance of becoming law.  In Wisconsin, Governor Walker persists on arresting peaceful Solidarity Singers in the Capitol, even though he knows that they will not stop their peaceful protests no matter how many times they are arrested.

The question our nation struggles with today is whether there is any room in our political system for consensus driven leadership.  Before exploring that challenge, let’s make sure we know what consensus means.  A common misperception is that consensus requires everyone to agree.  A much better definition, which avoids the sabotage of vetoing progress by refusing consensus is Merriam-Webster’s definition:

the judgment arrived at by most of those concerned.

Using this definition would avoid the political gamesmanship of Speaker Boehner and Governor Walker that appears to be calculated for power accumulation rather than actual substantive policy leadership.

In 2004, then candidate for US Senate, Barack Obama, gave his famous speech at the Democratic National Convention, where he optimistically declared that:

The pundits…like to slice and dice our country into red states and blue States: red states for Republicans, blue States for Democrats. But I’ve got news for them, too. We worship an awesome God in the blue states, and we don’t like federal agents poking around our libraries in the red states.

We coach little league in the blue states and, yes, we’ve got some gay friends in the red states.

There are patriots who opposed the war in Iraq, and there are patriots who supported the war in Iraq.

We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.

Given President Obama’s difficulties in bringing Speaker Boehner’s House along for consensus policy making, the question remains: can consensus driven leadership succeed?

It is well recognized that consensus driven  decisions provide the best results for the most people.  But how can we get there when power driven naysayers are committed to destroying consensus?  Key elements to achieving consensus are:

  • Providing sufficient information to decision makers.  Consensus cannot be achieved in a knowledge vacuum;
  • Consensus cannot be achieved in an atmosphere of fear or threat;
  • Quality leadership is essential to achieving consensus;
  • Consensus requires mutually accepted accountability to implement the decisions which are made.

In Wisconsin, Governor Walker’s new book, Unintimidated, is a declaration of war on those who disagree with him, rather than an invitation to lead through consensus.  His leadership style has resulted in Wisconsin becoming one of the most politically polarized states in the nation.  The challenge for his next opponent, in 2014, is to present a viable option to become the Governor for ALL of Wisconsin.

For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.

Getting to Yes in the 21st Century

In their seminal book, Getting to Yes, originally published in 1981, Roger Fisher and William Ury’s subtitle, Negotiating Agreement without Giving In, only begins to describe how this fairly short 200 page book, gives valuable lessons on the art of negotiating Win-Win solutions, instead the more commonly experienced Win-Lose, or worse yet, Lose-Lose solutions.  These lessons are needed today more than ever before.

As I previously described in, The Great Dysfunction or Lessons in how Not to Govern, our political environment is poisoned by politicians and their funders who believe that their sole goal is to obtain or retain the political majority.  Sadly, the recent failure of the U.S. Senate to pass the mildest of gun control reforms when it allowed a minority of Senators to block the background checks that roughly 90% of Americans want, demonstrated that the desire to obtain a Win-Win solution was unable to carry the day in the face of the NRA’s desire to “win” at all costs.

While there are numerous other examples of the failure of our political leaders to obtain palatable outcomes on the important issues of our day, rather than point fingers and accuse one side or the other of their responsibility for this miserable failure of leadership, the lessons taught so well in Getting to Yes need revisiting in order to change the unfortunate dynamic we are currently experiencing.

Fisher and Ury explain that we all negotiate on a daily basis, whether we realize it or not.  We negotiate with our families, our co-workers, those with whom we do business, as well as in the legal and political arenas.  While it may feel good to “win” when one negotiates, the long term outcome of having someone you deal with on a regular basis “lose” the negotiation, may not be worth it in the end.

I regularly explain this to parents of children with disabilities, whom I represent, when they want to “win” their legal claim against a wrongdoing school district, but may end up destroying relationships with the very educators whom they need to provide a quality education to their children.  Thus, I regularly remind them to “keep their eye on the prize,” which is the quality education they seek for their children, and not the pound of flesh which their anger may cause them to desire.

Many people who are in the midst of a dispute assume that there will always be a winner and a loser when the dispute is resolved.  This assumption is patently false, as there are two other possible outcomes:

  1. Neither side wins because the dispute remains unresolved (e.g., Israel and Palestine); and
  2. Both sides lose because though the dispute is resolved, neither side is happy with the outcome (e.g., a lawsuit results in a Pyrrhic victory for one side because that side obtains a fraction of what it sought and spent more money on attorneys than it gained through the resolved dispute).

So, how do Fisher & Ury suggest obtaining Win-Win solutions?  They do so by focusing on five key elements of principled negotiations:

  • “Separate the people from the problem.”  In other words,  the goal in negotiating should not be beating the other side.  It should be solving the problem at hand. Successful negotiation should not be considered the equivalent of a competitive sport if the parties are truly interested in solving the problem.
  • “Focus on interests, not positions.”  In the special education advocacy example mentioned earlier, the parents’ interest is in getting their children a quality education, not in having a judge rule in their favor to prove to the school district that they were right.
  • “Invent options for mutual gain.”  This is where win-win negotiating really becomes an art form.  Creative negotiators seek opportunities where both sides can gain from the outcome.  For example, when a school is dealing with a difficult behavioral situation, the win-lose situation is the child either stays in school with continued misbehavior, or the child is expelled, relieving the school from having to deal with the child, but putting the child on the Schools to Prison Pipeline.  The win-win solution involves bringing in a behavioral expert to observe the child in school and to provide sound suggestions to educators on how to improve teaching techniques and behavioral interventions to teach the child appropriate behaviors.
  • “Insist on using objective criteria.”  All too often, negotiation takes place on emotional terms or even outright falsehoods.  We saw this in the recent background check debate where the opponents to background checks simply lied about the bill before the Senate by raising false fears that the bill would prevent sales between family members.  No problems are successfully resolved by relying on falsehoods or emotions alone.
  • “Know your BATNA (Best Alternative To Negotiated Agreement)”  On a regular basis, I must counsel clients on what the likely outcome is if they fail to come to a negotiated agreement.  Without knowing this, the client (or politician) cannot truly make an informed decision as to whether to accept the offer presented.

This is not to suggest that Getting to Yes is easy.  In fact, it takes hard work, checking egos at the door, and regular reminders of what you are really seeking in the midst of your negotiation.  For nearly 28 years, I have had the professional privilege of assisting clients, non-profits and policymakers negotiate Win-Win solutions with the assistance of Getting to Yes principles.  Perhaps it is time for our political leaders to read and follow the rules of this invaluable book.

For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.