Monday, June 30, 2014
Today, the body of former Senator Howard H. Baker Jr. lay in repose across the street from my office in the building that houses the academic center benefacted by and named after him. (The building itself also bears his name.) His coffin, draped elegantly in the American flag, is a reminder of a political era essentially gone--but not forgotten (at least by me).
Senator Baker was a distinguished alumnus and benefactor of The University of Tennessee and the College of Law. Our main rotunda on the first floor of the law building is named for him. I dropped by today at the Baker Center for Public Policy to say goodbye to this revered statesman. I did not make the trip across the street to pay my respects primarily because he was a UT alumnus or benefactor--or even because I knew him (although we shook hands and chatted pleasantly at least once that I can remember) or knew any member of his family. I went because I deeply admire him and what he did with his public life. He was the kind of guy--known as "The Great Conciliator"--who exhibited political patience, valued compromise, and didn't let party politics or ideology stand in the way of what he knew in his gut was right.
In the obituary published by the American Bar Association in the ABA Journal, the following quote caught my eye:
“We are doing the business of the American people,” Baker said in a 1998 speech to members of Congress, explaining his philosophy of government. “And if we cannot be civil to one another, and if we stop dealing with those with whom we disagree, or that we don’t like, we would soon stop functioning altogether.”
Of course, the last bit stings a bit in light of the recent government shutdown. But . . . doing the business of the American people. Hmm. This part of the quote reminded me of the public fiduciary arguments that Donna Nagy raises in her 2011 Boston University Law Review article entitled "Insider Trading, Congressional Officials, and Duties of Entrustment." A great read, for those who haven't yet set aside the time.
However, the quote also made me think about Senator Baker's engagements over the years with legal issues impacting businesses. He was certainly pro-business, but he also fought for environmental protection and civil rights, among other things, even when those issues appeared, at least in the short term, to be a net negative for businesses. What, then, would Senator Baker have said about today's decision in Hobby Lobby? Well, we'll never know. But I will take a few guesses, and those who knew him or know his politics better than I can feel free to question and correct my prognostications.
First, I would like to think Senator Baker would have been disappointed that this matter ever made it into and through the judicial system in the first place. By recognizing the religious (and resulting political) tensions in the way that the statute and agency regulations operate and addressing those through legislative or regulatory adjustments, the views of the people, channeled through their elected representatives and public servants appointed by them or with their consent, could best be reflected on this people-oriented question. Having said that, he also might note that the good faith and fair dealing required to accomplish the task may have been wanting . . . .
What he might say about the Court's opinion itself is maybe a harder question. Leaving aside Senator Baker's views on the specific rules employed by the Court from the Religious Freedom Restoration Act and the individual judicial decisions cited (to which, I would think, he would give credit as expressions of the will of the institutions that created them), I would guess that he would support the Court's opinion as a hard-fought compromise. He might note that it allows businesses to have their way in a limited (albeit important) employee benefits space based on a difficult balancing of business owners' religious values and government interest in ensuring that employers equitably provide important health benefits to employees. (No matter how I draft that last sentence, it seems a bit off. But I think you get the essence . . . .)
As for the rest of us, we now turn to reading and re-reading the Court's opinion in Hobby Lobby to ferret out (as some already have done) meaning and traps for the unwary in implementing the decision. The political battle on this is far from over. And other political battles continue to be waged. It is my hope, however, that the executive and legislative branches take another page from Senator Baker's book and focus on listening first and foremost as they move forward from here.