Viewpoints B7
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THE DAILY HERALD
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WWW.HERALDNET.COM
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SUNDAY, 02.07.2016
GUEST COMMENTARY Clean Energy Fund
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Politics behind attacks on fund The state program isn’t picking winners and losers; it’s helping utilities develop 21st-century technologies. By Denis Hayes and Gregg Small
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Graying at the Temple Ruling out senility on the Supreme Court By David J. Garrow
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Los Angeles Times
n a law review article I wrote 15 years ago about cognitive decline on the U.S. Supreme Court, I predicted that, in the coming years, no one would take action to mitigate the problem. Instead, another half-dozen mentally decrepit justices would join “the roster of jurists who harmed their court and hurt their own reputations by remaining on the bench too long.” Although most justices who have retired since then left with their wits (more or less) intact, I’m concerned that my prediction is about to come true. Today we have four Supreme Court justices who are superannuated: Stephen G. Breyer is 77, Anthony M. Kennedy will turn 80 this summer, Antonin Scalia will celebrate his 80th birthday on March 11, and Ruth Bader Ginsburg will celebrate her 83rd four days later. Both Clarence Thomas, 67, and Samuel A. Alito Jr., 65, also qualify for Social Security. None of these justices has indicated that he or she will step down anytime soon, even if a like-minded individual wins the White House this year. (Officeholders in the “apolitical branch” often time their retirements for when an ideological cognate sits in the Oval Office.) In the past, once-revered justices such as William O. Douglas and Hugo Black could at least count on relative privacy when they doddered into senility; the press didn’t check behind
certain closed doors. But with Justice Breyer showing up on TMZ, Justice Alito and Chief Justice John G. Roberts Jr. (age 61) regularly attending public sporting events, and Justice Sonia Sotomayor (age 61) getting spotted at Costco, a secret breakdown is no longer realistic. That the two oldest justices, Ginsburg and Scalia, represent opposite poles of the ideological spectrum is a happy accident, as calls for reform must have a nonpartisan hue. Although neither has had a confirmed episode of cognitive decline, they’re both putting themselves in the way of embarrassment. Ginsburg fell asleep during the State of the Union (twice), the papal address and even during an oral argument; she also speaks about pending cases, which, if not a sign that she’s forgotten the rules, is an indication that she’s beyond respecting them. Scalia once called himself an “old fogey” who doesn’t understand the world in which he lives, and he sounds increasingly irritated in his opinions and public speeches. The problem of an aging judiciary extends beyond the Supreme Court to the hundreds of elderly federal judges across the country. The average age of these jurists is now over 70, with many in their 80s and 90s. The 94 U.S. district courts and 13 courts of appeals decide more than 98 percent of all cases with federal jurisdiction, so the continued mental acuity of these jurists should be a concern for all of us who use
interstate commerce or expect due process. If there’s a silver lining, no pun intended, it’s that some of these jurisdictions have implemented programs to promote sharpness in judges as they age. The 9th Circuit Court of Appeals, for instance, offers a battery of mental health assessments, hosts discussions with neurological experts and has created a hotline where staff may report signs of cognitive decline in their colleagues. Such measures are necessary because it’s hard for friends and family members, let alone the individual in question, to know if a tendency to, say, forget one’s keys is innocuous, or portentous. Unfortunately, the 9th Circuit program and a handful of others across the country exist in isolation, as there is no judiciary-wide strategy to cope with cognitive decline. That should change. Chief Justice Roberts
should use his authority as head of the federal judiciary to require his high court colleagues and others to undergo regular mental health checkups. Further, he could recommend a judicial retirement age of 70 or 75, as is done in the rest of the Western world. He and future nominees to the bench could even pledge to serve for no more than 18 years, as has been suggested by constitutional scholars and interest groups on the left and right as a reasonable limit on judicial tenure. Our court system and the law benefit from the wisdom of judges with many years of experience. But the federal judiciary, especially given congressional dysfunction, is simply too important to leave in the hands of old fogeys. David J. Garrow is a professor of law and history at the University of Pittsburgh School of Law.
That the two oldest justices, Ginsburg and Scalia, represent opposite poles of the ideological spectrum is a happy accident, as calls for reform must have a nonpartisan hue.
GUEST COMMENTARY | Everett’s response to homelessness
Anti-camping law criminalizes homelessness By Jay Willis
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ow should the Pacific Northwest’s rapidlygrowing communities respond to rising levels of homelessness, inequality and poverty? They certainly have options available: They can fund more shelter beds, or sponsor resume workshops and job fairs, or push for mixed-income housing in new construction, ensuring that a city’s exciting new growth benefits all residents. But lawmakers in some communities, apparently convinced that taking on these issues is too burdensome a task, have opted for a fourth approach: criminalizing the
poor and homeless. Everett is one of several Washington cities, including Aberdeen, Arlington and Burlington, that enforce ordinances prohibiting “unlawful camping.” Such laws waste municipal resources, exacerbate the cycle of poverty and fail to do anything to stem the tide of homelessness. In response to a court challenge, Judge Timothy Odell of the Everett Municipal Court recently issued perhaps the strongest condemnation yet of this unfair, misguided policy. It is time for Everett and cities like it to repeal these laws and find ways to meaningfully help their homeless residents.
In effect, unlawful camping applies to public property the laws that prohibit trespass on private property. Everett Municipal Code 8.56.010 makes it illegal to use tents, tarps, sleeping bags and blankets in places like parks, streets or vacant lots. If you go to sleep, and you have no roof over your head, Everett considers you a criminal. The ordinance might be sound policy if it were used to gently encourage shelter usage, or incentivize use of drug treatment programs, or deter sleeping in city streets or other dangerous areas. But Everett’s burgeoning homeless population has far outpaced the
capacity of available facilities. Of Everett’s three shelters, only one, the Everett Gospel Mission, serves single men without children. High demand for the mission’s beds has forced it to hold lotteries for space, and on many nights, dozens of hopeful entrants are turned away with nowhere to go. The law allows police to sweep through public streets and parks and haul these bewildered, exhausted people off to jail. Because unlawful camping charges are nearly impossible to beat, these cases swamp court dockets and compromise the See CAMPING, Page B9
ashington state’s Clean Energy Fund shows that this corner of the nation is committed to developing the energy technologies needed by 21st-century industry. The state Legislature wisely voted last session to renew this critical initiative. But the fund is not without fierce opposition. Powerful opponents in the Legislature, having twice failed in efforts to derail the fund, have resorted to cheap tricks by smearing technology startup companies and entrepreneurs who legitimately benefit from the fund. Last month, a major regional newspaper gave these opponents a front-page stage for their false claims of “insider advantage,” strongly im plying that something shady had been going on. Former public officials who’d worked selflessly and played by the rules were described as operating a “laundering operation.” The Herald also covered the ethics complaints — charges that recently were dismissed as “obviously unfounded or frivolous” by the state ethics board (“Ethics complaints related to PUD clean-energy project dismissed,” Jan. 27). In our digital world, the false accusations will live on forever, even though all accused were completely exonerated. But even full exoneration has not put an end to the attacks on the companies and the entrepreneurs behind them. Political opponents are opportunistically fostering a vague, lingering sense of impropriety to wage war on clean energy. This campaign aids those who want to undermine the state’s efforts to foster innovation and create new companies and jobs in the emerging clean energy economy. For example, state Sen. Doug Ericksen told The Herald in the Jan. 27 story, that there is still a “great perception” that “there is a problem in this process and they (those investigated) took advantage of the way the system was set up.” In reality, the “great perception” has been manufactured by fund opponents who file unfounded or frivolous complaints against companies or public utilities benefitting from the Clean Energy Fund. The senator’s assertion that there is a problem in the process continues his campaign to smear the reputation of clean energy companies that legitimately work on R&D projects funded by the Clean Energy Fund — which is what it was set up to do. Sen. Ericksen has been quoted as saying that “to pick and choose winners and losers in this type of technology environment with taxpayer dollars is a very difficult thing to do. … the state should stick to investing in research and development.” But the attacked grants were R&D, designed to help the state’s utilities explore new technologies that are essential to future “smart grids.” They did not pick winners and losers; the fund provided support for early-stage innovations that Washington utilities themselves determined showed great promise for the industry. This funding is the sort of government grant that even Ronald Reagan would See ATTACKS, Page B9