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Orange County News - Aug 29, 2005

Scalia: ‘Absolutely! What’s the question?’

My mind is still preoccupied with all things Stateside (as per my last blog about the US Primaries). Adding texture (as if it was needed) to the Primaries is the looming constitutional crisis of the replacement of recently deceased Antonin Scalia on the US Supreme Court. To those who are only occasional followers of the US Federal government system a quick rundown may be of value. There are basically four components, each designed specifically by the Founders to place a check on government to avoid abuse of power. The President is the Executive. While wielding a lot of power this is held in check by the other branches of Government e.g. Congress and the Supreme Court. Congress has two chambers being the House of Representatives and the Senate. To give an example of how the checks and balances work let’s consider the US going to war. Only the President, as Commander in Chief, can declare war but he needs Congress to vote the appropriations to fund it. The Supreme Court can rule on whether such action was unconstitutional and if so their decision becomes binding.

Why then am I focussing on this minutia of the US Supreme Court? Well for one the numbers are really important. There are nine judges in total so depending on the current set up you can have a liberal (by the numbers) court or a conservative one. This may be in accord or out of step with the political leanings of the executive. The death of Scalia, an arch conservative, means Obama has the opportunity to select his own (presumably liberal/progressive). This would mean for the first time in a long time that majority liberal decisions can be assumed more often than not. Nominations are fine but the candidate still needs Congress approval and that is where Obama may run out of time. The filibuster is very much part of the US political zeitgeist. This may well be a high risk strategy for the filibusters however because those seen obstructing a US President in the proper execution of his duties may well run foul of the voters in an election that also sees a number of Senators standing for re-election.


Dolores Avery – Quite often on the other end when Steven was ‘phoning home’

I’m also into all things American at the moment because I am in the thrall of Making a Murderer currently playing on Netflix. For me this is the most compelling television since Breaking Bad and it’s a documentary to boot. If you haven’t seen it, it is worth the price of Netflix alone. Without giving too much away, the chief protagonist, Steven Avery, is twice convicted for two different crimes which he quite clearly did not commit. The Avery’s are ‘trailer trash’ and yet the manner in which they have conducted themselves throughout 10 or so hours of documentary footage is astounding. Their quiet dignity, especially that of the inimitable Dolores, is something that you just settle into and admire for it shows that class is no determinant of …errr…class.

[Look away now if you don’t want a spoiler].

Steven Avery – a redneck with a right to be hot under the collar

One particular aspect of the Steven Avery story has struck me. I’ll call it absolutism. At his second trial, when he is tried for a brutal murder and disposal of a corpse, one of the jurors had to be relieved of their duties for family illness. He later advised that on immediately retiring to the Jury room an initial straw poll of the jurors was taken. The results were seven not guilty and three guilty; with one undecided. The verdict brought down at the end was Avery guilty of murder. What this said to me was that the absolutists on the jury had prevailed. Those of a more flexible mindset were drawn across to the clearly nonsensical decision to pronounce a guilty verdict by the three unwilling to yield. This had me in reflection mode. What is it about the absolutists that make the pragmatists want to compromise? I also reflected on the absolutism underpinning the verdict which is the presumption that the State is both more credible and important than the individual. Surely this flies in the face of the structure of Government put in place by the Founding Fathers? This is something Justice Scalia would find deeply upsetting.

Yet there is probably no greater exponent of absolutism in modern times than Supreme Court Judge Scalia himself. Often the ‘swing voter’ on the Supreme Court he wrote many judgements and he is known for his very conservative and strict adherence to the principles laid out in the Constitution. He used as his guiding principles the Founding Fathers’ absolute intent. Seldom did he take into account we live in a different age; a different time. Consequently America has been held back in some areas e.g. stem cell research as a result. Not surprising he was pretty robust on the defence of the Second Amendment (the right to bear arms) costing how many lives we can never know.

This strict adherence to principles without the pragmatism to know when to be firm and when to be flexible strikes me as an individual who does not understand, or refuses to accept the beauty of compromise. Not compromise when you are not being authentic. Not compromise when it makes it feel like you are not living your truth. Not compromise where you feel you have given a little of your soul away in the process, or betraying yourself ( a la Caroline Myss). Rather, compromise where your mindfulness and emotional intelligence has recognised the face issues of the other party and acknowledged that victory at all costs is ultimately a shallow exercise. It’s called the ‘art of compromise’ for a reason. It needs real artistry to achieve i.e. creativity, nuance, style and sensitivity.

I’ve been a long time believer that there are many false truisms in life and management. One of the biggest I think is that acting without compromise is hard and compromising is easy. I call this ‘hard is soft; soft is hard’. Being unyielding is as easy as pie. You pull the shutters down and just dig in. It’s not about tenacity it’s more about tuning out. Compromise on the other hand is much more difficult. There is an intense vulnerability at play here. Knowing what to hold firm to and what to compromise on is really hard. Knowing that your colleagues might ridicule you for bending or folding is hard to do. It’s about strength of character. That might sound counter-intuitive but sometimes to display our vulnerability is the hardest thing of all. To do so is to be authentic. Authenticity is seldom detectable in the un-yielding. The absolutists don’t give us enough of an insight into their inner workings to allow us to properly ‘feel’ them. The unyielding wall that is their lack of compromise is a barrier behind which they hide and makes an emotionally intelligent exchange with them well-nigh impossible. It’s a black and white approach to life and work when in fact the continuum of black and white has all shades of grey in between. That’s why I believe it’s beholden on those professions that come from an absolutist tradition e.g. accountants, engineers etc. to learn the complexity of management and unlearn much of what their underpinning knowledge has taught them. It’s doubtful that they will come to this heuristically.

And so to the jurors in the Steven Avery case. The three -probably biased before the case- jurors who held out for the guilty verdict must have just stood their ground so firmly that the others found they inappropriately compromised their own beliefs for the sake of expediency. In such cases this is not an authentic compromise position. The lesson that Steven Avery lives to this very day in a Wisconsin prison is that absolutism cannot be applied absolutely. The problem is the absolutists have no idea about how to shift their paradigm.

Two things I hope we can look forward to in the not too distant future. Firstly a new Supreme Court judge who has the wisdom to guide the US in the decades that follow bringing down well-reasoned and compassionate rulings and secondly the exoneration and compensation of Steven Avery and Brendan Dassey for crimes they clearly did not commit. Of that I’m absolutely certain.