David Hearod

June 7, 2019

I read this morning that David Hearod died yesterday at a Princeton nursing home.
He was 70. Visitation will be at Morgan Funeral Home in Princeton this morning and burial this
afternoon. How often do you hear of that happening? A person dies one day and is buried the
next. He died a pauper and spent almost all of his life with the mind of a four-year old child.

David was from old Kuttawa. When he was just a baby, his mom took him to a doctor for a
regular inoculation of some sort. The nurse who gave him the shot made a brutally tragic
mistake. David was running a temperature, most likely from a harmless cold. The nurse either
didn’t take his temperature or ignored it. She gave him the inoculation. When combined with
his fever, he suffered permanent and serious brain damage. It pretty much froze his mental
development in place.

So, David’s parents were saddled with the terrific burden of raising a child with severe brain
damage. I didn’t know his father. He passed long before I got to know David and his mother
Anna. They lived in a little, wooden frame house on the upper ledge at old Kuttawa. Their
home, while always neat and clean, consisted only of about three rooms.

David’s physical agility and mobility was mostly unaffected by his brain damage. He could
dress himself and basically take care of his bodily cares under the direction of his mom. He
had the vacant and constant stare of an idiot in his eyes and was quiet and subdued most of
the time. When he spoke, he did so loudly, and in rushed sentences which, made sense, but
were of little substance. “We got no mail today,” or “Bill McConnell came by yesterday.” His
words would be sudden ejaculations of thought, and then he would retreat back into his silent
house of mystery. Like a four-year old, he had friends who he recognized. He would speak
and answer questions with mostly yes and no. Well, guttural grunts were more like it. His
personality was totally devoid of any emotion. I never saw him smile.

Obviously, he required constant supervision by his poor mother and was incapable of any
gainful employment. Even his domestic usefulness was limited. His main assignment each
day, was the job of going to the mail box and getting the mail for Anna. He carried out this
responsibility with the diligence and devotion of a decorated soldier. There, at the mail box, he
 would stand, a lonely sentinel with his head slightly turned in the direction from which he knew
the US Postal service would arrive. The friendly mail man would place the mail in David’s hand,
who would retreat with his daily trove to the house and place it in the hands of his mom.

 

Like school kids once marked the time of day with their disassembled ramblings home after 3
p.m., David marked the time of day by his daily vigil at the mail box. Neighbors from down the
street could tell if the mail had run by looking for the man standing at the Hearod mail box.

I visited in their home many times. Anna was a large, stout, and intelligent woman. She drew
disability for her and David and I once investigated unsuccessfully the possibility of some
recourse for his long ago medical malpractice claim. I was always struck by the simplistic
sweetness of David, and the gallant courage of his mom. Her personality was one of bold
acceptance never complaining or lamenting her terrible plight in life. She performed her
motherly duties as like one sent from Heaven by God himself to cheerfully watch over and care
for one David Hearod.

But Anna grew old. Tired. David grew into middle age. No change in David. But Anna died.
David seemed to be emotionally detached from such a momentous loss. Just another day at
the mail box for him.

Either distant cousins or Social services took over. Anna was buried, and David was moved to
the nursing home in Princeton. The little wooden house with the fabulous view of Lake Barkley
was sold. The nursing home and Medicare gobbled up the money. In a short time the house
was torn down. Some stranger from up north replaced it with a nice new home. The mail box
is gone. No trace of Anna Hearod and her severely challenged son has been left behind.

David lived out the last 25 years or so of his life in the Princeton nursing home. I went by to
see him several times. He was always clean, well dressed and fed. His countenance and
demeanor was unchanged, from those times I visited him in old Kuttawa in his mother’s warm
and loving kitchen. He seemed happy there with others of similar ilk. Happy? Not sure that is
the right word for someone without emotion. Satisfied comes to mind.

So now David Hearod is dead. I plan to go to the visitation. Visitation. Somehow the word
sounds strange all of a sudden, for the event. Outside a cousin or two, and maybe some loyal
care takers from the nursing home, there will not be many to visit each other around the earthly
remains of David. A very meager few, if any, will remember the sad saga of Anna and David
Hearod? When pondered deeply in the heart we try to draw some meaning from it all. Some
purpose for these ill-fated lives bent low under the heavy cross of misery and woe. We strain to
find God’s will in it all. An innocent babe through no fault of his own, cruelly abused. A loving
mother, through no fault of her own, sentenced to a life of nursing and caring for the eternal
infant. How could Heaven look on and not take their part? The story of Anna and David is
simply one of the millions of such melancholy tales which are told across America each day.
They run their earthly course and will—like David this afternoon—descend into the earth.

And, without any answers, we will quietly strike David’s name from the prayer list at our church.

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Law Day Speech to new Lawyers at the Capitol | May 1, 2019  |By Justice Cunningham (retired)

This is the 13th consecutive year that I have attended the May Day ceremony in this historic chamber. It’s been my honor to hear outstanding speakers speak from this podium the best of which some of my fellow brothers and sisters of the Supreme Court.

I’m also mindful that perhaps the greatest orator in the history of the United States, the great William Jennings Bryan stood on this very spot and addressed the joint meeting of the Kentucky General Assembly on January 19, 1922—over 97 years ago.

So, to be very honest with you today…I’ve always wanted to speak at this event.

Former Governor Bert Combs told the story of an old prospector who was wearily trudging into town one day with his pack mule. A drunken cowboy came staggering out of a saloon with his .45 blazing firing into the air. He spotted the old man and decided he would have a little fun. So, he went up to the grisly old-timer and his mule and proclaimed, “old man, I’m going to make you dance.” He then proceeded to pour out the lead around the old man’s feet as the aged prospector danced from one foot to the other. Finally the cowboy ran out of bullets. The old prospector calmly went back to his pack and pulled out a long, double barrel shotgun, and stuck the end of the barrel in the cowboy’s face and pulled back the hammers. “Boy”, he said, “you ever kissed a mule in the mouth?” The cow poke, now completely sober and wide eyed as he stared down the barrel of the shotgun said, “No. But I’ve always wanted to.”

So thank you Chief Justice and Associate members and Ms. Clary,for giving me the opportunity this morning to do something I’ve always wanted to do.

Another reason this is special for me personally is, that I celebrate 50 years as a lawyer this year. You are just beginning. I’m falling into the sere, the yellow leaf, you are just bursting into full bloom.

I have no magical words of wisdom for you this morning…no profound insights, but only, to paraphrase the great Patrick Henry, “I have but one lamp to guide you here today, and that is the lamp of my experience.”

First, the good news. If I had it all to do over…..I’d choose to be a lawyer everytime. There is no greater boast in the grand pantheon of callings, than to say, “I am a lawyer. I work for justice.” You are only a few minutes away from joining that noble band.

My limited time this morning compels me to share with you only twoof the most important things my experience of being a lawyer has taught me.

First, if you want to have a happy life as a lawyer be nice to everyone.

If you want to have a disastrous life that will lead to alcohol and drug addictions, ruined marriages, and mental illness, then follow those miserable barristers who follow the deceptive sirens of greed, win at all cost—hard ball. They follow the failing banner that nice guys finish last. I present to you exhibit A to totally destroy that myth this morning. The seven justices sitting right here are all in first place. They are all some of the nicest people I have ever met. I rest my case.

Be nice to everyone—opposing lawyers, their clients, jurors and witnesses, and secretaries and law clerks. Be nicer to the judge’s secretary than you are to the judge; nicer to the deputy clerks than you are to the clerks; nicer to the people who clean the building, than the person who owns the building. Back on a rainy afternoon in the late 1890s, an elderly lady walked into a Philadelphia department store. Young clerk asked if he could help, and she responded that she was just getting out of the rain. He didn’t try to sell her anything, but simply got her a chair to sit in. After the rain stopped, she asked for his card and left. It was Andrew Carnegie’s mother. Andrew Carnegie was one of the wealthiest men in the history of the United States. Later the store received a letter from Andrew Carnegie requesting that the store furnish his entire castle in Scotland and that the young man who gave his mother a chair be sent to fulfill the order. Yes, always be nice to everyone.

 

Secondly, do not let technology swallow up who you are. Do not lose your humanity to technology. The toughest thing about suffering through my speech right now is having your cell phone off. Steve Jobs, the founder of Apple, refused to allow his children to have an iPad.”We limit how much technology our kids use, “ he said,”We think it’s too dangerous.” Senator Ben Sasse in his book “Them” says, “we are likelier to spend time seeking validation from out digital “friends’ than to spend time with flesh and blood friends.”

You would be offended if I told you that you were enslaved to your girl friend, or your husband, or to a senior lawyer in the firm. Yet, we become impervious to being enslaved to technology. The ones here today who will rise above all others will be the ones who know when to quit the texting and make the phone call; when to turn off the e- mail and communicate face to face. Construct an inner antenna to recognize that need. It’s ironic that modern technology makes it easier for us to communicate, but we use it to communicate less successfully.

In November of 1972, I voted by absentee ballot from Vietnam in the presidential election between incumbent Richard Nixon and challenger George McGovern. President Nixon won that election 3 with 60.7 % of the vote, carrying every state but one. Years later I was sitting in a fancy restaurant with my friend David Whalen, congressional aide to Congressman Carl Perkins. A man walked in the restaurant and began greeting people at the next table. He looked vaguely familiar. “You know who that guy is?” David asked. “I don’t know. He looks very familiar.” I responded. “That’s George McGovern” he replied.

 

I was incredulous. It couldn’t be George McGovern. This man was smiling, shaking hands, engaging people in conversation. He was warm and appealing. I liked him. The real George McGovern did not come through on the technology of television. Don’t let that happen to you. God gave each and everyone of you a personality. Use it. The turn of a phrase, a tilt of the head, a certain inflection of the voice….each of you have personal charm in varying degrees. Don’t lose it to the cold screen and unfeeling touch of your cell phone or computer.

Technology is the great equalizer..making everyone bland and lifeless.

With all of that said I fully recognize that is is highly unlikely that any of you will remember anything I say here today. In fact, fifty years down the road, when you are where I am, I bet you the farm, you will not even remember who was the speaker here today. If you do….call me. I’ll give you the farm.

But I promise that there are two things which you will remember about today.

1. You will remember how your felt. You will remember the joy of being here with your family and loved ones, who look on proudly. Picture taking. Snap, snap, snap. Seeing your friends who also made it to the top of the heap, great sense of accomplishment from all the hard work. You will remember this moment just as you will remember the thrill of that moment you learned that you passed the bar exam. Hold onto that feeling. You are going to need it over the long, challenging journey ahead of you. Put it in a bottle, and put it on your shelf. And when those days come, as they do in any profession worthwhile, when you become stressed from the burden of other people’s problems; when you are discouraged and depressed from a series of setbacks and losses; when you dread getting up to face a particular client, a particular hearing; a particular judge……when you have second thoughts about being a lawyer..take a big swig of this feeling and be renewed with that energy and pride….knowing that any job that matters, any job dedicated to helping others, and problem solving, any job worthwhile…the job of being a lawyer, will have days and moments like that.

 

2. The second thing you will remember is that you took an oath here today. The oath that you will be giving shortly……the magical oath…..the scant few words. One moment you are a lay person, and the next…..poof….you are a lawyer. You ride up here with family members who you have been giving free legal advice to for the past three years, and now you can charge them for it on the way home.

What is an oath? The dictionary defines an oath as “a solemn promise, often invoking a divine witness, regarding ones future action or behavior.” A promise. Giving your word.

I have taken this same oath seven times in my life. When I became a lawyer, and six times being sworn in to public office. I’ve administered this oath to Governors, Lt Governors, other constitutional officers, judges and lawyers, school board members and mayors. I’ve never let them get off with a yes or no answer. I make them repeat it. It’s not my oath; it is their oath. Ms. Clary will let you off with a yes or no answer here today. But…..it is still your oath. You are giving your word to us, to the people of Kentucky, and “so help you God.”, that you will support the constitution of the United States and the Commonwealth of Kentucky.

We live in the land of the free and the home of the brave. We remain free only if we remain brave. It is not large fleets of black bottomed ships, nor marching brigades of soldiers that keep us free. It is the constitution. The executive branch doesn’t keep you free. Unfettered it will become tyrannical; it is not the legislative branch which keeps you free, for unchecked it becomes an oligarchy. It is the judicial branch and lawyers which keeps us free, through the enforcement of our constitutions. So, in effect, you are freedom fighters. Outside your wedding vows, it will be the most important promise you will ever make.

 

During my 12 years working in this beautiful temple of democracy, I kept on my wall in my office the old and tattered 8th Grade Diploma of my father framed and hanging on my wall. My father only had an eighth grade education but he had a juris doctorate in character. My character was molded out of watching the way he lived his life with honesty, self-discipline, integrity, charity, hard work, and total devotion to my mother and his children. Character is caught more than it is taught. But there was one verbal admonition he gave me, not once, but many times as I was growing up. He gave it to me so many times that that I came to think that even my Baptist conversion would not save me from eternal damnation if I violated it. That admonition was simply this. “Always keep your word….even when it takes the skin off your nose.” That description quickly catches the attention of a small child Every rambunctious child knows the pain of having the skin taken off your nose.

Please take heed that keeping your oath, keeping your word to support and uphold the constitution may sometimes take the skin offyour nose.

For Example: *A prosecutor provides evidence to a criminal defendant who has committed a heinous crime knowing that such evidence is likely to cause that criminal to go free—because the constitution through the interpretation of the U.S. Supreme Court requires it. It takes the skin off his nose.

For example: a trial judge suppresses evidence in a serious criminal trial—because the constitution requires it. And pays a terrible political price. It takes the skin off his nose.
For example: *this Court right here late last year struck down two important laws enacted by the General Assembly, and both the executive and legislative branch announced war upon the court and the judiciary for their upholding their oath of office in supporting the constitution of the Commonwealth of Kentucky.

For example: *a legislator stands here in this chamber and votes no to proposed legislation because he knows or strongly suspects it is

unconstitutional while a mob of voters scream out in the rotunda for him or her to vote yes. Knowing that his vote may well lose him the next election he remains true to his word in supporting the constitution. It takes skin off his nose.

I wish I could impress you with these remarks of the gathering storm clouds which threaten our republic. It’s the growing disrespect for our constitution. Our country is imperiled. More and more public officials, some of them lawyers, are treating the constitution like a side dish no one ordered. More and more are treating it like an impediment to power, rather than a birthright to democracy. We live in the most perilous times in our history, endangered not by foreign powers, but by our own our own neglect of our constitutions. The only thing which prevents us from being ruled by dictators or tyrants is our constitution. If the 34 lawyers at the 1787 U.S. Constitutional convention had not been lawyers first, and politicians second….we would not have a constitution. If you are not lawyers first and politicians second, we will not keep our constitution.

I’m not sure we’re going to make it. And I’m not the only one. But there is hope. The hope is in our lawyers. David Brooks, noted columnist who is not a lawyer, was referring to these perilous times when he wrote in the New York Times on Feb 22 of this year:

In speaking of lawyers as the saviors of America he said, “The legal institutions instill codes of excellence that are strong enough to take the heat. Those people(lawyers) have enough character to live up to those codes. They are clinging tenaciously to old standards of right and wrong, to the Constitution, and the rule of law. And if we get through this, it will be because of people like them.”

So, when you stand here in a few moments and Ms. Clary ask if you will support the constitution of the United States and the constitution of the Commonwealth of Kentucky…. In that fleeting moment please insert in your own passing thought, “even if it takes the skin off my nose.” Then, and only then, will you have the right to call yourself a lawyer.

 

In closing, as this old warrior departs the arena, I wish you nothing but success and happiness in the exciting years ahead. We send you off with the words of Virgil, “God’s speed to your youthful valor, may you scale the stars.”

Kentucky Appellate Survey Monthly Judicial Focus Series Justice Bill Cunningham Interview Questions

1.Can you tell our readers a little bit about yourself? Maybe something that even those who know you would be surprised to learn.

I came within 200 yards of being born in prison. I was born in government housing across the street from the Kentucky State Penitentiary in old Eddyville. My father worked on the old lock and dam. That town was demolished for Barkley Lake and we moved to Benton. After graduating from Benton High School, I attended Murray State and University of Kentucky law school. After law school I served four years in the Army in Germany, Vietnam, and Korea. After the Army I started practicing law in Eddyville and served as public defender for the inmates at the Kentucky State Penitentiary; Hearing officer for the Board of Claims; Commonwealth Attorney; Circuit Judge and just completed 12 years on the state Supreme Court.

2. Why did you decide to retire from the bench this year?

Burnout. The most important thing about being anywhere, is knowing when to leave. After 45 years of human misery, tortured children, dysfunctional people and homes, indescribably evil perpetrated by human beings on each other….I’d had enough. I just lost my passion for it. And when you lose your love for being in the arena of human tragedy, you’d best leave.

3. You have been both a public defender and a prosecutor and served for fifteen years as a circuit judge. How has that experience informed your work on the Kentucky Supreme Court?

Those experiences made me who I was on the Supreme Court. You draw much more from your experiences than you do from the law books. Clerks can look up the law. Only you could have walked the walk.

4. Justice Venters recently told us that he didn’t understand why trial judges sometimes get worked up about being reversed on appeal. You’ve been on both sides of the appellate process in your capacity as a judge—you’ve overturned trial and Court of Appeals judges and you’ve presumably been overturned as a trial judge. Were you ever reversed as a trial judge in a decision that you felt was incorrect or unfair? On the other hand, did you ever, as a trial judge, get reversed and, upon reflection, agree with that decision?

I’m afraid I wasn’t as cool about getting reversed as Dan was. It bothered me to get reversed because it not only meant I had to do it over, it meant all the lawyers and people involved had to do it over, often times at great cost. Because of my mistake. And sometimes, especially in serious criminal cases, that can cause a lot of emotional trauma upon innocent people. And yes, I was reversed in cases in which I disagreed. But in fairness to the appellate courts of this state, in most cases where I was reversed, and had time to reflect, I concluded they probably got it right.

5. We have interviewed several trial judges as part of this series and they have told us that they often struggle to apply the decisions or principles of law handed down by our appellate courts. Do you empathize with them in that regard? Is there anything you believe appellate courts, particularly the Supreme Court, could do to make it easier for trial judges to correctly and consistently apply the law?

 

As a former trial judge, I tried to write my opinions for them….not for law professors. That meant I tried to keep it simple and short. I think their criticism is perfectly justified. Our opinions are too often too long and too complicated. We’ve made a total mess out of slip and fall and open and hazardous cases. If I were a trial judge right now, I would be totally confused about the law if I were trying a slip and fall case.

6. The Kentucky Supreme Court and the Kentucky Court of Appeals are courts of review. How important is it to defer to certain rulings and findings of the trial court and how difficult is it to resist the temptation to reverse the trial court where the law was arguably applied correctly but the result seems wrong or unjust? Can you think of any particular cases where you have affirmed a trial court but had doubts about the decisions that court made or thought to yourself “I would have handled that differently”?

Well, I think we all give great deference to trial judges. We’ve been there and we respect them. And we know how difficult it is out on the trial bench in the heat of a trial. After all, in my opinion, the Appellant has the burden. Otherwise in our oral arguments, the Appellant would not be allowed to go both first and last. And yes, we’ll uphold trial judges sometimes when we would have handled it differently. Quite often, I would have let a juror go on voir dire for cause, just to be on the safe side. But, I might not think the trial judge in that instant abused his or her discretion in not striking that juror.

7. Former Justice Mary Noble, especially toward the end of her tenure, became rather critical of the Court’s embrace of “harmless error” in criminal cases. Criminal defense attorneys have echoed that criticism and suggested that there’s not really any principled way to differentiate between harmless errors and errors which warrant reversal. How do appellate judges distinguish between the two and is there any risk of the concept of harmless error becoming an overused escape valve for appellate courts to avoid making the often unpopular decision to overturn criminal convictions?

Well, Mary—who is like a sister to me—and I were most times on opposite sides in that debate. And we came to that issue with our own experiences…mine in law enforcement and prosecution. If we demand perfect trials, then we will not have any convictions affirmed. The suggestions that there is not harmless error in the explosive dynamics of a week-long trial defies common sense. A judge erroneously making an evidentiary ruling that has nothing at all to do with the rights of the accused nor his guilt or innocence is a harmless mistake. What difference does it make if the judge incorrectly allowed a witness to testify to hearsay about the color of the car when the color of the car had no more to do with the case than who won the Cardinals and Reds game that day?

8. Some attorneys are of the view that oral arguments rarely help your case but they can often hurt your case. Do oral arguments impact the outcome of a case? Has your vote ever been swayed by oral argument? Can you provide the Bar with some guidance as to what to do and what not to do during oral argument?

You must understand that we spend a tremendous amount of time studying briefs and preparing for oral arguments. So, we have studied about everything that each of the lawyers have to say about the case. That naturally leads to us at least be leaning one way or the other going into oral argument. Sometimes we may be leaning quite heavily. But sometimes we overlook something, and a lawyer will change our mind. Or maybe we have questions to ask that will influence us. Then the answers that the lawyer gives us in oral argument persuades us. I’d say that oral arguments will either convince me or change my mind in about 25 percent of the cases. As for advice to lawyers arguing. Be very nice and courteous to your opponent. We like nice people. Candidly admit your weaknesses and mistakes. We like and

admire people who have the honesty and self-confidence to do that. Plus, it gives you great credibility.

9. You have probably reviewed thousands of appellate briefs in your career. Now is your chance to tell the Bar what the justices want to see more (and less) of. What are some of the do’s and don’ts of appellate briefing from your perspective?

You are right. Thousands. That means a lot of reading. So, my advice to lawyers is not to think you have to use all of the fifty pages allotted. Almost always when the entire fifty pages are used, the lawyer starts repeating themselves. When I see a 15-page brief, I’m thinking genius. If you can’t say it simply, you don’t understand it well enough. No one appreciates brevity like appellate judges.

10. When deciding whether to grant discretionary review, what are some of the factors that you and your colleagues consider? Are there often strong disagreements on the Court about whether to accept a case for review?

Last question first. Yes, some of our most heated and contested discussions will come on whether to take a case for review. As for factors that I considered? First and foremost is, do I think the Court of Appeals got it wrong? If they got it wrong, we should fix it. That’s our job. If you were the litigants and the state’s highest court thought the lower court was wrong and walked away from it…..what would you think about your court system? We are a “discretionary review” court. We can take a case for whatever reason we choose. Contrary to the argument of some of my fellow justices, we are an error correction court. The US Supreme Court? It is a certiorari court. Big difference. You can look it up.

11. Trial and appellate judges often have to become “mini-experts” in various areas of law all at once, but presumably, like everyone else, there are certain areas of law or legal topics which interest each judge more than others. What areas of law or legal topics particularly interested you during your time on the bench? Are you able to shed any light on how other justices on the Court might answer that question?

Well, because of my background I naturally lean toward criminal cases. And, if I had an expertise in that area, I’d like to think it is search and seizure. Many years ago, when I was Commonwealth Attorney, a Maryland Appellate judge named Charles Moylan spoke several times to our group on search and seizure. He was captivating. The fourth amendment has history written all over it and I’m enraptured by that famous William Pitt statement about the “majesty of the ruined tenement” and “the King of England cannot enter.” As to other justices and their special interest? They would have to answer that for themselves.

12. Can you take us behind the scenes of how a case is decided by the Supreme Court, particularly the deliberations among the justices once a case is submitted?

The most uplifting and inspiring part of serving on the Supreme Court has been provided by the passion and commitment to fairness and justice by my fellow members of the court, dealing all the time with the cases of total strangers. Each justice is assigned a case to write. The opinion is written, and votes taken. Often, we disagree. So, we argue. And some arguments become quite heated. As they should. There are no small cases and sometimes we spend a lot of time on a relatively minor case. But, to use the parlance of Shakespeare, we “are quick to take quarrel in a straw if honor is at stake.” Or, in our case, justice is at stake. But always two things happen. It is always about the individual justices’ notion of right and wrong—no selfish motives. And it always ends with us cooling down, remaining close friends and moving on to the next case. You may be coming across the table at someone on one case

(not literally) and that same person will be your most vocal ally and supporter on the next case. It’s wonderful, actually, to watch this work.

13. There is often sharp disagreement on the Court about certain cases and issues. How do you all address those differences while maintaining collegiality? Has your position ever changed or been swayed by an argument or position of one of your colleagues? To what extent do you and your colleagues “lobby” or try to persuade others to come to your side? Are there any particular legal decisions, lines of reasoning, or trends embraced by your colleagues with which you strongly disagreed?

Wow! Lot of questions there. There is not enough time and space to answer all these. Let’s go with collegiality. For 12 years I served on the state Supreme Court with my best friends. If we weren’t close before we got there (and many of us were) we became close once we were there. Much of this grows out of a mutual respect that we have for each other based upon our shared experiences in the arena of human tragedy. I look around that table and see people who have walked the walk and talked the talk. So, when they spoke….I listened. It wasn’t like I was sharing space with lawyers who had spent their careers running titles, and that’s all. Outside the conference room we tried to spend time together as well, especially while we were in Frankfort. You eat and drink together, then you laugh together. And if you laugh together, you like each other. And when it is time to get serious, you can do so and remain friends through some grueling disagreements. To summarize the other questions: Yes we lobby each other and try to persuade, and yes there are many opinions and lines of reasoning, we disagree with each other and will do so till the day we die. That is called conviction.

14. This past year saw what some might characterize as an unusually high number of contentious “political” cases come to the Court—“political” in the sense that they attracted a great deal of attention from the other branches, political advocacy groups, and the media. The pension and medical review panel cases come to mind, but there are others. How did the Court navigate those politically troubled waters? Both the pension and medical review decisions were unanimous, although there were concurring opinions. Did the Court think it was especially important in those cases to speak with one voice?

We always thought if was important to speak with one voice. Not essential. But important. No one will sacrifice their own integrity. But we like to have our majority as large as possible. On highly visible cases with a state divided, and our opinion controversial, I think it always reassures the public of the rightness of our decision when we all agree. I will say this about the unanimous decisions in the pension case. Everyone was on the same page from the get go. It was so blatant and obvious, we all started in agreement. It did not require any persuading nor cajoling. It was a no brainer from the start. We only had to write the opinion that pulled it all together, as Justice Venters did so adeptly.

15. One major case where the Court did not speak with one voice was the Kindred v. Clark, Kindred v. Wellner, and Extendicare Homes v. Whisman group of nursing-home arbitration cases, which produced two 4-3 decisions from our Supreme Court and an unanimous reversal (in part) by the US Supreme Court. Justice Venters recently took us behind the scenes of that “extraordinary” case, as he described it. Can you give us your perspective on that case, given the significant interest it attracted?

Well, we had two of the best justices that have ever sat on the Kentucky State Supreme Court dueling it out on that one. Justice Hughes and Justice Venters. I was with Dan. It wasn’t because we had a mind set against arbitration. It was, and is, that we think access to our courts is a sacred right for every American. It should not be lightly considered nor taken away without there being a clear and defined declaration that a person is giving up that right. I think Dan has spoken to that much better than I can. And I think Justice Hughes is also

sensitive to that concern as well. I think the disagreement just comes down as to how best to preserve that interest and at the same time follow the law favoring arbitration.

16. What are some of the biggest challenges you see facing Kentucky’s judiciary now and in the immediate future?

Our judiciary is at risk. We have become too expensive and too inefficient. It takes longer and longer for cases to be disposed of. Unless we become more responsive to the needs of the people, they will turn more and more to alternative conflict resolution methods such as arbitration. People are losing faith in our court system. If you talk to most people who have been litigants in our court system, they are hardly ever happy with the process. And their chief complaint is that it takes too long and too expensive.

17. In responding to Governor Bevin’s criticism of the judiciary, you said “What Gov. Bevin says goes by you like the idle wind, and I don’t think people pay a lot of attention to what he says.” Has the criticism from Governor Bevin and others affected the Court’s work, and do you think it erodes the public’s confidence in the judicial system? To the extent he’s inclined to listen, what kind of successor do you hope he appoints to fill your seat?

I think you answered the first question by your introduction to it. The criticism by the Governor or anyone else for that matter does not affect our work. If it did, we judges and justices would be in the wrong line of work. Remember, every decision a judge or justice makes will usually invoke criticism from the losing side-sometimes both sides. We do criticism for a living. As to how the Governor’s comments may affect public confidence, our court was divided on this. Some thought it hurt our image and we should respond to it. Others thought we should ignore what he said and not lower the court system to what might be perceived as a political debate. I was mostly of the latter group because of what you just quoted. “I don’t think people pay a lot of attention to what he says.” I would not dare to answer your last question—what kind of successor I hope for the Governor to appoint to take my place? That would throw me into a process I need to avoid right now.

18. What advice do you have for your successor?

Be thankful, and be humble. And remember that time is fleeting. You only have a short time in the long march of history to make a difference. Don’t squander it.

19. What will you miss the most about being on the Court? The least?

That’s easy. The Capitol and my teammates are what I will miss the most. I’m sure Stan Musial and Lou Gehrig missed their teammates when their time was up, and they had to leave baseball. But when you can no longer hit the curve, or field the ground ball, you owe it to your teammates to leave. What will I miss the least? The gargantuan load of reading.

20. What is next for you?

I have no idea. I’m living on my belief system right now and my faith in God.

All Lives Matter

July 3, 2018

The men’s locker room at the downtown YMCA in Frankfort has a flat screen TV on the wall. Every morning when I go there to swim, it’s blaring out the daily dosage of bad news. If no one else is in the locker room, I turn it off. If someone is there watching it, I politely endure.

Just recently I was exposed to another one of those news reports of police brutality. Pretty nasty stuff. The black-and-white video of the encounter showed several uniformed officers in the hallway of some public building, pounding away at some hapless victim who was down on the floor. The clip lasted only about 15 seconds. I stood and watched it and wondered. What was the back story behind this violent encounter? In some cases, there is none. Sometimes police abuse their sacred trust and use unnecessary and excessive force. It happens. And when it happens, it undermines our faith and trust in law enforcement.

But, there in the YMCA locker room, I turned to my friends watching the news report and asked them this question: “Do you know how many arrests are made by police officers around this country every day? Thousands.” They seemed to get my point.

There are 13,217 law enforcement agencies scattered across America and approximately 653,000 sworn police officers. These agencies include Federal, state, and local officers.

Do you know how many people out there in the good ole USA get arrested each day? According to the Uniform Crime Reporting Program of the FBI there are approximately 29,212 arrests each day. I was right. Thousands. Almost 30,000 arrests made in one 24-hour period. Incredible.

Think of this while drinking your morning coffee. From Bangor, Maine to San Diego; from Seattle to the Florida Keys; all through the night while you were sleeping, the men and women of law enforcement were out making arrests to make us safer. From the deadly darkness of a Brooklyn alley, to the lonely stretch of a Texas back road, they face scary encounters with people committing crimes. They arrest dangerous fugitives running from the law, sometimes armed to the hilt.

While you were sleeping some frightened, rookie cop in blue was approaching a car load of suspicious looking characters on a LA freeway. As you were safely slumbering in your bed, some man or woman wearing a badge was cut down in a flash of gunfire, leaving a home devastated with grief.

While you slept, prison guards across this land were wide awake and vigilant. Inside the metal and concrete cages of correctional facilities in every state, they confronted crazed and assaultive men and womensome of them hurling human feces into their faces. Violent felons warehoused to keep them from your front door.

Countless times these peace officers carried out their daunting duties with incredible professionalism, constraint that stretches human endurance, and patience. Yet what you see on the morning news while enjoying your eggs and bacon is an isolated incident of abuse and misjudgment—an aberration infecting a national cadre of police that universally makes us proud. Or, should make us proud. But the isolated abuse makes the news. We see it and take away that image of our police. It’s not fair.

Then you hear the clamor that “Black Lives Matter,” and then you see bumper stickers that read “Blue Lives Matter.” Around-the-clock news barkers stir up division, making money by sowing suspicion and discord among Americans. They do so with a conflagration of noise and distortion which obscures God’s eternal truth. “All lives matter.”

Where is the Moral Compass?

January 15, 2018

The stunning revelations of sexual abuse by famous and powerful men against women have swept across this country.

Even in this age of sexual promiscuity, the stories are exceptionally lurid and depressing. They cause various concerns, all of which are worthy of deep thought.

First, as a lawyer and judge, I am uneasy about the prospects that in copycat style, reputations of innocent men may be besmirched or even ruined by false allegations. It seems that the news media cares nothing for the presumption of innocence in its rush to judgment.

But by far the most unsettling aspect of it all is the sad realization that most, if not all, of these claims are true.

What is finally coming to the surface in this country is a national cancer which has been eating away at our innards for years without notice. The decline of manhood. Real manhood. Men not of muscular good looks or clever pick-up lines. But men of character. Several years ago, Kate Bolick addressed the deficiency of the contemporary male character in her November 2011 article “All the Single Ladies” in the Atlantic magazine.

Bolick states “American women as a whole have never been confronted with such a radically shrinking pool of marriageable men.” She boldly concludes that choice is far too often between “playboys and deadbeats.”

What is the chief cause of this devastating social malady? One of the major culprits is the absence of fathers in the home. Young boys learn how to be men from their own fathers.

I was raised by a strong father whom I feared throughout my childhood and loved profoundly when I was grown. He was a man’s man. And, I grew up in close proximity to the men he worked with. They were of the same ilk. I saw on a daily basis the deep respect and gentle manners with which my father treated my mother, his mother, his sister, my sisters…all women of course. Too many young boys today are growing up in homes without men, or worse, in homes with bad men. Men who have so little self-confidence in their own manhood that they have to cover it up by physical abuse against their physically weaker girlfriend, wife, or even children. These so-called men, with the bluster and masculine bravado of their false gods, are cowards. Verbal and unacceptable language toward a woman is a form of assault, sometimes more devastating than physical abuse.

So, we can begin with that one realization as we try to correct our course. We need to put good fathers back in the home. But, I carry this deeply depressing dread that it might be irreversible. I think of the melancholy reflection of Ezra Pound: “they will come no more; the old men with beautiful manners.”

All of these appalling sexual transgressions by men in positions of power and authority are done in a current social climate of moral coarseness, open vulgarity, and shameless sexual exhibitionism. There is a prurient pestilence infesting our country. And such a condition has historically been the death rattle of ancient civilizations.

For the last several decades, television and movie moguls and directors have poured out onto the American landscape programs, movies, and sitcoms with explicit sexual content. There has been a rapid stripping down of moral discernment and good taste in exhibiting more and more provocative sexually explicit movies and programs. Sexual acts are now commonplace on primetime TV. My own generation of baby boomers has produced a permissive pop culture where tolerance has become the only virtue, and intolerance the only vice.

Much of the sexual misconduct making the headlines is committed by the powerful moguls and actors who have been spewing immorality upon our country for years through the powerful means of movies and television—and have become filthy rich in the process.

Madison Avenue has learned that “sex sells” by saturating the advertising market with provocative sexual pictures, scenes, and innuendoes. With 24-hour television and commercials raining down upon the American consciousness constantly, the young are raised on one clear message of sexual permissiveness and entitlement. The message to our young: if you’re not “sexy,” you’re nobody. If you’re not having sex, you’re nobody. Heaven help our young find their moral compass through this tsunami of indecent salesmanship.

Part of the symbol of the ancient Masonic fraternity is the compass. It serves as a reminder to all men of Masonry to “circumscribe our passions and keep them within due bounds.” It is an admonition that we as a nation would do well to follow.

Myths of History

August 29, 2017

Sometimes it is best to leave history to the past. As time marches forward truth begins to get trampled under-foot. People who were participants and witnesses to history in the making die off. Facts begin to blur into myths. Boring or unattractive truths get cast aside. Romance, exaggeration, and finally fiction arrive upon the field of battle to pick away and haul off souvenirs that are durable and interesting. The ground itself, soaked in blood, sweat and tears, is left alone as too mundane and cumbersome to carry.

So, we move century by century with an increasing ignorance of things as they really were.

We are now many bends of the river past the Civil War. And, the epoch story of America division and bloodshed is being reduced to simple explanations and TV sound bites.

The story has evolved that with the thundering of the inaugural guns at Ft. Sumter, boys in blue from up north came sweeping down into the south, their sabers waving above their heads and with the burning intensity of knocking off the manacles of an enslaved race of people and release them from awful bondage. And the ole southern boys in the tattered gray were meeting them at the stone wall and giving up their young lives to be mingled with the blood of their fellow youth, for the purpose of keeping their human chattels chained to involuntary servitude.

Of course, that is all myth. The Yanks came south to keep the United States united. The southern boys fought bravely for the right to form their own country. It took blood, and lots of it, to decide the legality of secession. Slavery? Unquestionably, a very indefensible and inconvenient issue. But still, an issue not yet deemed worthy of dying for by either side.

It soon became clear that the war was not going to be just a one month walk in the park. The mounting horror and bloody reports of the battlefields began to demoralize the northern populace, it’s political leaders and the soldiers. It is not a natural leaning of young boys from Iowa to dress up in blue and go kill other young boys in gray from Arkansas, who they don’t even know. Nor to inflict suffering on other human beings for bleary reasons. Keeping the country united was a bleary reason. After all, the concept of independence—southern or otherwise—was a very familiar notion to all Americans. It had been only 85 years since the Revolutionary War, when north and south fought together to shake loose from the rule of the British crown.

So, for the north to hang tough with this horrible carnage and boys bearing almost unbearable suffering in the steamy climate a thousand miles away from home, there had to be explanations and a cause which stirred the soul. All platoons marching onto deadly ground, with bayonets gleaming in the sun, have to have their marching bands of beating drums, rousing brass bands and the lofty call of the trumpet. What had not been an issue worth fighting and dying for in the north, slowly seeped into the psychic of the Yankee cause.

Enter the brass bands, lifting poetry, powerful novels, and heartening cadence of marching hymns.

Enter “Uncle Tom’s Cabin” and the rising chorus of the moving anthem which asks these young men to “trample out the vintage where the grapes of wrath have worn.”   The words of Julia Ward Howe are so inspirational, it almost makes me—even a century and a half later—want to wage war for God. While such an idea may not have resonated with the totally ambivalent soldiers in blue, suffering and dying in the trenches, it sold well as a more tangible and palpable motivation for many, maybe most, of the people in the north.

The south had no such high level and moralistic anthem. It was stuck with the cancer of slavery, so intertwined in the war, that it began to eat away and finally destroy the honorable cause of independence and state’s rights. President Jefferson Davis’s offer to emancipate the slaves in exchange for official recognition by France and England; the emancipation of slaves who enlisted and fought for the Confederacy, came much too late, and was far too little. That cancer remains to this day, morphing into the destructive ignorance of those intent on destroying history.

Today, most all Americans have just enough knowledge of the history of the Civil War to be dangerous. Out of an upper level class of 28 students at a state university recently, only one student knew when the Civil War was fought. But there is a fair chance, more than one of them will be in the mob to bring down a stone edifice of Robert E. Lee.

Kentucky’s own Pulitzer Prize winner Robert Penn Warren tries in vain to be heard even today, speaking out from under the mounting debris of ignorance, misrepresentation and distortions. In his book “The Legacy of the Civil War” written for the Centennial in 1961, he brings the heavy hand of truth crashing down on the “virtue signaling” moralists of today’s intellectually deficient monument marauders. He writes in part that the northerner feels redeemed, for he, “tends to rewrite history to suit his own deep needs.”

Warren proceeds to smash through common myths which exist today. “It is forgotten”, he laments, that the Republican Party—the party of Lincoln—of 1860 pledged protection of slavery in the states where it existed. “It is forgotten” that in 1861, and after the war started, the Republicans were willing to guarantee slavery in the southern states if they returned to the Union. “It is forgotten” that in 1861 the Union Congress voted almost unanimously to affirm that the Civil War was not to interfere with slavery but to maintain the Union. “It is forgotten” that the House Resolution declared that the war would cease as soon as the seceding states would return to the Union. “It is forgotten” that the revered and now sacred “Emancipation Proclamation” issued on September 23, 1862, was in part a political ploy to induce peace and not just the liberation of slaves. Slavery was to be abolished only in seceding states—not all slave holding states—and was to be recalled if those errant statehoods returned to the Union by the first of the following January. “It is forgotten” that the proclamation was widely disapproved by northerners and led to the political defeat of office holders in subsequent elections.

“It is forgotten” that many northern states rejected the 14th Amendment to our U.S. Constitution and denied the Negro suffrage. “It is forgotten” that racial prejudice ran rampant in the Union Army and General Sherman himself was adamantly against army black troops to firing upon white Rebels. “It is forgotten” that Abraham Lincoln in 1858, in a speech in Charlestown, Illinois declared “I am not, nor ever have been, in favor of bringing about in any way the social and political equality of the white and black races.”   “It is forgotten” that the Great Emancipator told black leaders visiting the White House in 1862, that “even when you cease to be slaves, you are yet far removed from being placed on an equality with the white race…It is better for us both to be separated.” In that meeting he encouraged the black leaders to consider leaving the United States and establish a foreign state of their own. “It is forgotten” that the north was not any more enamored with racial justice than the south.

“It is forgotten” Warren finally concluded, “that history is history.”

None of this diminishes the greatness of Lincoln. There is something great and heroic to be said about holding our country together. And no one can deny his expressed personal opposition to slavery. His statements today would be considered racist. In his day, they were considered broadly liberal and enlightened. Please, please, leave his monuments alone.

Over the years, history slowly ceases to be history. It becomes something else. And that something else is whatever the hooting mobs and lords of self-righteousness announce it to be.

Slavery was a national sin. Drastic and unfulfilling as it may sound to the modern American ear, there is a strong argument that the abolition of slavery was merely a byproduct of the Civil War.

Thank God that slavery was abolished. Let’s bow our collective heads in thanksgiving and forgive ourselves. And move on.

There is grave danger to our history in people tearing down monuments with a superficial and limited knowledge of history. As a Vietnam vet, I’m haunted with the notion that 100 years from now the somber and reverential, black wall of granite in our nation’s Capital honoring those who died for a cause far away from home and mostly unknowing as to why, will be bull dozed under tons of dirt. Napalm. Baby killers. Parrot’s Beak. Cambodia Invasion. Kent State. These will be terms bannered as total history of that war. The names of gallant young men who braved an early death for their country will be desecrated. Desecrated by noise makers who never heard a shot fired in anger.

A brand-new monument commemorating Woodstock will replace it.

Itching Ears

August 8, 2017

“For the time is coming when people will not endure sound teaching, but having itching ears they will accumulate for themselves teachers to suit their own likings, and will turn away from listening to the truth and wander into myths.” 2 Timothy 4:3 (Revised Standard Version)

Thanks to good parents, I’ve been reading the Bible all my life. It continues to delight me with those hidden bits of wisdom newly discovered. The above scripture, though thousands of years old, is more relevant to our times than ever before.

Today, America is drowning in information. But we are starving for truth.

In our confusing and uncertain times, we become frightened as we grope in the darkness. We quickly formulate and hold fast to our own opinion, as a drowning person might grab a life buoy. We lack the courage and faith to maintain open acceptance and we refuse to search long and hard for the facts before we draw conclusions.

We can all sympathize with Pontius Pilate in this regard. Frustrated and perplexed with the seemingly unreasonable clamor of the Jewish mob who wanted to put a peaceful and harmless itinerant preacher to death, he listened to the shouts and demands while trying to discern the facts. Exasperated, he finally threw up his hands in confusion and exclaimed, “What is truth?”

I’ve always felt a slight tinge of sympathy for Pilate. Any judge knows exactly how he felt. Most Americans today know how he felt.

What is truth?

We have two types of citizens. There are those, who subconsciously, do not want to know the truth. They fear the truth. They are afraid that they will lose the security of the life buoy and fall back into the sea of uncertainty. These are the people “who wander into myth.”

And then there are those who are deliberate in sifting through the evidence and slow to come to a conclusion until they are totally confident of the credibility of the source of information. Who is bearing this information? What bias do they bring? Are they fair and trustworthy? And even after reaching an opinion, they welcome a continual flow of new information, and are not afraid to change their mind.

It’s upon this latter group of citizens that the future of America depends.

Around the clock, we are bombarded with news blaring out from flat screens everywhere. You have to work to get away from them. I wouldn’t be surprised if they did not show up on the Appalachian Trail.

And the media—especially television— is not interested in the truth. They are interested in the ratings. They are interested in the profit margin. As my father said about a man who talked all the time, “a man that talks that much, is bound to run out of truth.” A television network spewing out news around the clock is certain to run out of truth.

The media is in the business to take information and select and parlay it along to the American public as entertainment. So, controversy is always their top billing. It is a reality of the childhood playground—a good fight always draws a crowd. So, the media—electronic primarily—agitates constant turmoil and friction, pitting race against race, men against women, Democrats against Republicans, liberals against conservatives…Americans against Americans. It draws a crowd to make more and more money by better ratings. It is human failing for us to be drawn, like the moth to the flame, to the sensationalized sex, racial strife, violence, and crime stories. Therein lies the golden goose of television magnates.

Senator John McCain recently recognized this. “Stop listening to the bombastic loudmouths on the radio and television and the internet…they don’t want anything done for the public good. Our incapacity is their livelihood.”

MSNBC, CNN, ABC, CBS, Fox News. Quite frankly, I don’t trust any of them. My proudest boast is my wife and five children. Next is that I’ve never written a check for cable television.

The toughest challenge for us today is not understanding information. It is obtaining truthful information. When television news was a service, ladled out in short, daily reports, and not entertainment—we trusted the messenger. Huntly and Brinkley, John Chancellor, Walter Cronkite, Douglas Edwards. They had a very short time in the evening to tell us what was important. And they did so and then got out of the way. We trusted them not to lie or deceive us. And, they didn’t. At least, never intentionally.

So, we hack on through the dense undergrowth of media noise, tying to acquire enough knowledge of the world around us to make good decisions. It’s not easy. But if we realize that the truth is elusive, and we are doing our best to track it down…that is a good start. Unfortunately, it seems that most of Americans never get that far.

Why Bobby E. Lee?

June 7, 2017

One hundred years is a blink of an eye in the deep well of history. One hundred years is a long time in other ways.  

One hundred years ago this summer, the Murray Chapter of the Daughters of the Confederacy hit the wall in raising funds for the final payment on the monument in memory of the Confederate dead and the stone replica of Robert E. Lee.

The Murray Bank, under the leadership of the president, Ed Diuguid, struck a deal with the chapter of Daughters. It would finish off the payment, as long as the monument stood on this corner and faced his bank. The name of that bank is gone; but it is still a bank. And Bobby Lee still stands.  

Two questions I pose to you today is this?

Why Bobby Lee? And how long will he stand?

The great men and women of 100 years ago were in the business of constructing monuments of appreciation. The lessor men and women of today are in the business of tearing them down. We have moved in one hundred years from proudly dedicating this monument in the full light of the noon day sun, to tearing down monuments under the cloak of darkness and police protection. We have moved in one hundred years from a generation of appreciation to a generation of historical amnesia.

I am proud that that a statute of Robert E. Lee was chosen for this site. For Robert E. Lee is an example of the best of the lost Confederacy. His military record has its critics. But no one would deny the strong and impeccable character of the man. That was his great strength and inspiration. He was a man of dedication, honesty, bravery and integrity.

Facts are stubborn things. Even after 100 years, the truth does not change.

At the outbreak of the Civil War in 1861, the state of Virginia had been in existence in some form for 275 years. The government of the United States for less than 90 years. There were people alive at the outbreak of the Civil War who had lived under the British Crown. To whom did the people of Lee’s state owe their allegiance….their state government centuries old, or a country still trying to find its sea legs?

At the 1789 Constitutional Convention, the status of states and their autonomy was upmost on minds of the delegates, especially the southern states. States’ rights were the tantamount consideration. If the delegates at the convention had been able to see the size and control of our Federal government today, almost all of them would have gone home. We would have no constitution.

At the outbreak of the Civil War, it was universal sentiment of most Southern patriots that the primary obligation was to the state, not the nation. The cause of the Civil War was States’ rights. Unfortunately, the issue was slavery.

Bobby Lee was a Confederate general for one reason and one reason only. He was loyal to his state—the Old Dominion.

Robert E. Lee was a good person. And being a good person, he was staunchly anti-slavery. Don’t take my word for it. Listen to the words of Robert E. Lee himself. I quote from a letter he wrote to President Pierce two days after Christmas in 1856—less than five years before the outbreak of the War Between the States.

“There are few, I believe, in this enlightened age, who will

not acknowledge that slavery as an institution is a moral

and political evil.”

 Why-I must ask the revisionists and monument marauders of this age- would General Lee choose to be loyal to his state, forfeit his beautiful and grand estate just across the river from Washington D.C., be separated from his family, expose himself to four long years of the horrors of a bloody war– for a practice which he considered evil? It doesn’t make sense, to think that Robert E. Lee was fighting to preserve slavery.

He, like most all Confederates, was fighting out of loyalty to the principle of state rights and envisioned that war as basically the second war for American independence—this being for the Southern independence.

Who do you know that is pleased and proud of what is going on in Washington, D.C. today? But the revisionists fail to have the intellectual breadth to understand and accept the historical fact that the inefficiency and gridlock of our Federal Government which frustrates us so much today is exactly what our Confederate forefathers foresaw as the ultimate result of a government removed and disconnected from the people.

For Lee and most all the Southern military leaders, the war was not fought to preserve slavery, but over which government—Federal or state—and by which method was slavery to be abolished. The latter concern was confused by the bloody uprising of Nat Turner and John Brown. These historical events spurned fears of bloody retribution if the slaves were emancipated all at once. So, the slave holding states had a tiger by the tail. There was also genuine, if perhaps misplaced, notion that slaves were not yet prepared for an immediate freedom. So, the general dispute was not over whether slavery was wrong—many if not most Southern leaders thought so—but how to rid ourselves of this monstrous institution. There were even black leaders of that day—both slave and free—who thought the best method was to establish and emigrate to a newly created country of Liberia. Even Abraham Lincoln subscribed to this view at one time.

But such a movement was opposed by both blacks and whites, because they saw the slaves for what they truly were—Americans, whose families had been on our shores for longer than many whites. These people of color who we loved and cherished even through the thin veil of slavery contributed then, as now, to the rich tapestry of America.

A distorted perspective exists on both sides. Southerners have been wrong to demonize Abraham Lincoln. Married to a southern wife, possessed a vision for this country that blinded the view of our Southern leaders. In his second inaugural address he called for future of “malice toward none, and charity for all” and of “binding up the nation’s wounds.” The day after the Confederate surrender at Appomattox he had “Dixie” played at the White House.

All knowing Southern leaders were in fact saddened by his death. Said Lee upon learning of the murder of the president, “It’s a crime previously unknown to this country and one that must be deprecated by every American.” Said Jefferson Davis, “I fear it will be disastrous to our people and I regret it deeply.” When Union General Tecumseh Sherman broke the news to Confederate General Joseph Johnston at Hillsboro he described Lincoln’s death as the “greatest possible calamity to the South.”

If the great Emancipator-the president who requested Dixie to be played in the White House– married to a Southern wife, was alive today, he would be adamantly opposed to the removal of the monuments honoring the southern war dead and their cause.

He would admonish the American public—let it lay.

Do not, 100 years in retrospect, desecrate those names of long dead and no longer able to speak for themselves. Do not, over 100 years after the Civil War, and 50 years after the Civil Rights movement and ensuing laws eliminating discrimination, open old wounds and stir up matters which divide us, instead of stressing those things which unite us.  For this was a man who, even from before the time the war ended was already talking about reconciliation and mutual respect.

“We are not enemies, but friends.” he proclaimed,” We must not be enemies. Though passion may have strained it must not break our bonds of affection.”

So if those who wish to divide us once again into North and South, those of who wish to continue, one hundred years after the Civil War by stirring up divisive issue by attacking our sacred landmarks, do not wish to respect our Southern leaders, perhaps they will listen and follow to the words of the hallowed name of Abraham Lincoln himself.

In closing, I wish to emphasize one vital truth.

It is egregiously unjust and unfair, to judge people of a past age long dead and no longer able to speak for themselves, by the values of our age, rather than those of the time in which they lived.  

Let’s get real folks. If we are allowed to discount past valor and bravery with a century of hindsight, then nothing will be sacred, either today, or in the future.

I am a Vietnam vet. It is hard to believe that a half century has passed since that war ended. It was a controversial war, even at that time. Some of my colleagues were spat upon when they returned to this country by a segment of our youth who had turned against those who served.

There are many who call it, even to this day—an immoral war. Sound familiar? There are the names of 58,000 Americans on that solemn, black granite wall in Washington, D.C. But this fitting edifice to those brave Americans may not be standing 100 years from now. After we are all dead and gone, and the blood or their sacrifice is washed from the view of the living then the Monument Marauders will mount up to desecrate their memory based upon their own narrow and simplistic view of history. That long and dignified granite wall will be pushed down in the inky cloak of night to be remembered no more.

Most Americans believe the Iraqi war was a huge mistake. Soon, the term immoral will seep into the conversation. And our monuments honoring those brave men and women who left homes and families to die for America will be demeaned. These somber reminders of their sacrifices will fall to the whimsy of an uncaring, ill-informed, and distant generation.

Some distant day—unless truth is to reign—those monuments paying tribute to the brave and gallant men and women who died in those two wars, may be pulled to the ground and covered up.

Let us remember, as I close, that in spite of what some may say, Bobby Lee and the men and women this monument represent were not evil. Jeff Davis and our own Simon Bolivar Buckner and John Caleb Breckinridge, and scores of good old Kentucky and Tennessee boys who died on distant battlefields were not evil. That our Confederate ancestors—many, if not most of which did not even own slaves—were not evil.

So let us pray monument honoring a great man will remain to celebrate another century of standing on the court square in Murray, Kentucky. And let us pray that at that time our future generations will then live in a more perfect union, a more understanding union, and a kinder union.

I close by laying before you two parallel writings which will graphically illustrate the ambiguities of all wars in which our nation has been involved; they illustrate the unfairness of trying to pass judgement upon one generation from the lofty viewpoint of the mountain top of time, far removed from the close combat and chaotic conditions and noise of the clashing swords of wars of the distant past.

Major Michel Davis O’Donnell of Springfield, Illinois was a helicopter pilot killed in action in Vietnam. He wrote these words only days before his death. If these words I speak today could be immortalized this would be my personal plead to the Monument Marauders of 2117 on behalf of all my fellow Vietnam vets that they might spare the monuments to our beloved dead.

“If you are able, save for them a place inside of you

 And save one backward glance when you are leaving for the places they can no longer go.

 Be not ashamed to say you loved them, though you may or may not have always.

Take what they have left and what they taught you with their dying

And keep it with your own.

And in that time when men decide

And feel safe to call the war insane,

Take one moment to embrace those gentle heroes you left behind.”

 And in closing, hear the words of the great Kentucky writer, Robert Penn Warren, as he gave honor to those who this monument of Robert E. Lee represents.

So let us bend ear to them in this hour of lateness,

And what they are trying to say, try to understand,

And try to forgive them their defects, even their greatness,

For we are their children in the light of humanness, and under

The shadow of God’s closing hand.

The Lost Power of Eloquence

February 14, 2016

“We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.”

This eloquence almost takes your breath away. These words were spoken by Abraham Lincoln at his first Inaugural Address. When I read them I can’t help but think of the terrible rancor and division that shakes our political landscape in America today. When I read them I can’t help but think of the coarse, vulgar and meaningless language of our presidential candidate debates in both parties, both in tone and in words. Surely our times are seeing a reenactment of the noise pollution of babbling, indecipherable rants beneath the Tower of Babel.

Think hard. Quote me one soul punching phrase from the lips of an American president over the past 50 years that is remotely comparable to these powerful words of Lincoln. Let’s be kind to our memory bank. Give me one memorable phrase from the presidential inaugural addresses of the past 20 years. I search in vain from Bush to Clinton to Bush to Obama…for one phrase that comes close.

Where did this art of writing and speaking with the right husbandry and power of words come from?

With Lincoln we know. He didn’t go to Yale or Harvard or even high school. He was totally self-educated.

First he grew up in the selected silence of nature. Toiling on the backwoods farm of his father and deep into the woods of sparsely populated Kentucky and Illinois, his ears heard only the symphony of the wind in the trees, the chorus of birds, the racket of wild life, rushing water, all to the beat of his own persistent heart. There, with sweat on his brow and young muscles stretching, his mind formulated his own thoughts with clarity, uncluttered by the clash of manmade sounds. Politicians today fear solitude worse than the Devil fears holy water.

Secondly, his personal library was sparse, but golden. Even the poorest of the poor in early day America had a King James Version of the Bible. He read it ardently and repeatedly. There is no better book in literature which matches the graceful language and imagery as the work of the King James Commission. Lincoln’s impoverished circumstances limited his other reading to the classics, including lots and lots of Shakespeare. That’s right, to Lincoln, “Trolius and Cressida” and Plato’s “Republic” were light reading.

And lastly, as to his political writings—Abe Lincoln was thankfully unhitched from Madison Avenue advertising agencies, Washington D.C. political consultants, and speech writers. What you saw and heard from Abe…was Abe. Most likely he wrote every line himself. His rough notes of the Gettysburg address, which have been preserved, offer proof of that. Today our serious candidates for president are merely cardboard props who show us little of their hearts and souls. Everything they say has to be sanitized and filtered through the gambit of a bevy of consultants and pollsters. “This won’t sell in Des Moines,” they admonish. They might be surprised.

Words move us. Inspire us. We have not lost that love and even hunger for the uplifting use of the English language.

My most memorable image of the court room where I once tried jury trials on a regular basis is how people were still entranced when verbs and adjectives and allegories are all strung together just right. I’ve heard oral arguments—long ago—that would suck the air out the room.

A powerful phrase stated just right would strike straight through to the souls of the listeners. The gathering caught its collective breath. Heart stopping silence. Though the huge chamber was packed with people, you could hear the call of a crow, half a mile away.

Through the racket and noise of the electronic media—TV, twitter, e-mail, 24 hour talking heads, call in shows, around the clock talking—we lack the words that matter. Those which move us. Which make us better.

John Kennedy once said of Winston Churchill, “He mobilized the English language and sent it to war.”

Kenneth McFarland, renowned public speaker in the 70’s and 80’s recounted a story of an English friend who as a small boy lived in a remote village during the beginning of the German attack upon Great Britain. Out there in a remote thatched hovel, his parents and his siblings leaned close to the old radio as Winston Churchill spoke to the perils facing that beleaguered island from the Nazi threat. The great English Prime Minister reached out with his eloquence over the crackling radio waves to all points of England. “We will fight them on the landing strips, we will fight them in the streets, we will fight them in the hills…we shall never surrender.”

His friend said that after these words were spoken, he looked around his humble abode. Every member of his family was standing. He did not notice when they each stood. The eloquence and inspirational words of Winston Churchill had physically raised them from their chairs.

Whoever rediscovers that magic, will surely be the next President of the United States.

The Laptop Father

January 25, 2016

One Saturday morning just before Christmas, I had the privilege of taking my grandson Nicholas to his little league basketball practice in Mt. Pleasant, South Carolina. His dad is a sea captain and was on his ship. His mom was taking care of his three younger siblings. He’s seven years old. On this morning, it was just him and me.
It was a scene taking place at about the same time all across America. Young mothers or fathers dragging little ones, some still wiping sleep from their eyes, to the school or youth center for recreational basketball. These were young boys only a few, scant years away from Pampers. The varying skill levels of this age group range from the ability to dribble with one hand without looking at the ball, to closely examining the basketball to see if they’d met before.
I eased onto the bleachers next to several young fathers to watch my grandson perform. I’m intensely interested in several things.
First, I’m curious of what kind of coach would care enough to give up his Saturday morning to come and try to orchestrate a practice session of such young neophytes which would have some semblance of order and instruction. After all, I’ve read horror stories about some youth coaches who are frustrated Bobby Knights, dressed in a little brief Saturday morning authority and take out their frustrations on innocent, defenseless children. A person teaching basketball to children of tender years should know something about basketball. But, more importantly, they should have character.
This coach did a great job. He conducted the practice with calm and kind patience and discipline. The one hour exercise had been well planned and thought out. He ran the little ones through basic drills and instruction, including the clever use of plastic cones to help the beginners know where they should go on the floor. For the entire hour, he kept them busy with a lot of movement and helpful instruction. Most importantly, he kept it fun.
Then, of course, I wanted to see how my grandson stacks up with the rest of the kids. I needed to be able to take word back to his dad as to whether we can start thinking college basketball scholarship or start doubling the amount of money his parents are putting into the higher education savings. Of course at that age, it is impossible to tell. Michael Jordan didn’t even start on his high school basketball team till his senior year. Pretty much the same with Dan Issel and scores of other super stars. These children are diamonds in the rough. Very rough. And of course, most of them will never even be diamonds—in basketball at least.
Nicholas did just fine.
But my main reason for being there that morning was to let my grandson know that I wasn’t just his chauffeur for the morning. That I was his grandfather, intensely interested in him; in what he did; how he conducted himself; how he got along with his team mates; how much effort he gave; what sportsmanship he showed. In short, I wanted him to know that I was there to size him up. I wanted to send him the message that this singular hour of the week we were together, was as important to me as it was to him. It was important to me only because he was important to me. While I didn’t consciously think of it in those terms that morning, that was the essence of the mission.
Seated only a few feet away from me on the bleachers was a young father of one of the boys playing. I could not keep my eyes off of him. He had a computer unfolded on his lap into which he peered intently as he worked the keys. Not once did I see him raise his eyes to follow the action on the floor, or show a modicum of interest. He was a nice enough guy, politely answering a couple questions I asked about the practice.
There were a few other fathers on the bleachers with me. All of them with cell phones in hand and dividing up their time and attention between what their son was doing and what was coming in on their I-phones. I pulled out my I-phone too—to take a picture of my grandson playing basketball.
I couldn’t help but wonder several things. First, what could have possibly been more important to these fathers than their seven year old son playing basketball on a Saturday morning just before Christmas? How many men were, at that very hour, searching with their wives for hopeful advice from their doctors on how their childless union could be solved? How many fathers in the far flung corners of the world defending the interest of our country would be missing this important rite of passage of their own children? Did this inattentive father with the laptop have a clue how fleeting these important hours were, and how fast their innocent young sons become grown men, their character and destiny shaped to a large degree on whether they knew their father, and knew how much their father cared?
But the following question haunted me more than any other. What would their offspring of such tender years think when he eagerly searched the bleachers for his father, and finds his father not even watching? That his father’s mind and soul are somewhere else? What pain is realized by that little heart that just for that one hour of his weekend, his hero in the bleachers, could not be in rapt attention to what he was doing?
Having raised five boys myself, all of them grown and gone, I wanted to snatch the laptop away from this father and say to him, “there is nothing more important in your life than being a good father. And this morning is slipping away.”
But, I didn’t. I just watched my grandson with pride and thanksgiving.
My grandson’s Dad, who is a Master Mariner, defends his fellow father. “He may have been under the gun, Dad, to close a deal or take care of business which is part of taking care of his family.”
Maybe so.
But he could have been more comfortable working at home and sending his son to basketball practice in a taxi.