Friday, June 29, 2007

Blind Justice

In 1861, soon after the Civil War began, President Lincoln declared a blockade of the rebellious South. It proved to be one of the North's most effective weapons. Owners of several ships seized by the US Navy sued, claiming that the blockade was illegal, because it was an act of war and Congress had not declared a state of war to exist. In The Prize Cases, the Supreme Court upheld the blockade. Writing for the Court, Justice Grier observed that the the war was "a fact which the Court is bound to notice and to know."

Yesterday, a majority of today's Court turned a blind eye to reality (although Justice Kennedy gave a least a nod in its direction), ruling that school assignment plans in Seattle and Louisville are unconstitutional. The four reactionary members of the court would hold that any consideration of race in school assignment violates the Constitution. They had the gall to cite Brown v. Board of Education in their opinion.

Brown was decided because of a problem--racial discrimination. Its declaration that separate but equal is inherently unequal recognized that the law may appear to say one thing while doing another. Segregated schools were said to be equal; that was the rationale that had been adopted to keep the races apart. But--as the Court recognized in 1954--that equality was false. Yesterday, the majority turned that rationale on its head, saying, in Chief Justice Roberts' words, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," as a justification for striking down measures to secure integration. The Chief Justice is no fool; he must have known that the court's decision would aid, not cure, racial discrimination.

Conservatives have been very clever in using legalisms--that is, legal principles divorced from the context of the real world--to reverse more than half a century of racial progress in this country. In this effort, they have used the separation between private and public actions to their advantage.

When Brown was decided, segregation was enforced by law. Under the 14th Amendment, government action to cause or enforce distinction on the basis of race is unlawful. Traditional Anglo-American law takes a very different view of private action, however. The classic attitude was, as one wag put it,

Thou shalt not kill, yet needst not strive
Officiously to keep alive.

The much-beloved Prof. Clark Byse, of Harvard Law School, described the common law view this way: "Suppose I'm sitting by the river, smoking my cigar, and a baby comes floating by. As long as I don't flick my ashes in baby's face, I have no obligation to do anything." (In some cases, laws have been passed to impose a duty to act in such situations, but they are rare.)

A person's choice of where to live is private, and the perhaps-natural desire to live with people who look the same as we do, or worship in the same church or synagogue or otherwise seem like us (which some might call prejudice) has been left largely unfettered. (When one person won't sell or rent to a person because of race, national origin, religion or the like, government does get involved, even though those may be private choices.) So, we have come to the point where private choices have led to segregated neighborhoods--often more segregated than they were half a century ago, and the courts take refuge behind the concept of color-blindness to preserve the re-segregation of our schools.

It's not quite as simple as that, actually. Back in the '70's, the Supreme Court was faced with the question of whether a federal court could order city and suburban school districts combined in order to achieve integration. The court decided that that was beyond the purview of federal law. How different things would be today had that case gone the other way.

Is segregation "a fact which the Court is bound to notice and to know?" Today, apparently not. But someday, with different judges, the question may be answered differently. Let's hope so.

Thursday, June 28, 2007

The cost

Each day, The New York Times publishes Names of the Dead, a box inside of which are the names of soldiers whose deaths have been announced by the Defense Department since the last edition. Most days, I read it; spending a few moments looking at the names, ranks, hometowns and units of the dead seems like the least I can do to pay honor to their memories.

Yesterday, I was particularly struck by the number of NCOs who were listed. Among 11 men there were six sergeants; there was also one lieutenant. The Talmud says that to save one life is to save the world; I suppose the reverse of that is that to lose a life is to lose the world. Even if we do not take the humanist position that each life--Iraqi, American, soldier, civilian--is of equal value, the cost that the US is paying in Iraq in terms of damage to our military is horrendous. Non-Com's and junior officers make the services go. Taken together, they are much more important than the much-less-numerous senior officers. (Kipling said, "The backbone of the Army/Is the non-commissioned man.")

We don't need another reason to end our misbegotten adventure in Iraq, but here is one anyway. We are losing the best of us in pursuit of, what?

How to be popular

A couple of days ago, I posted a comment on a blog I ran across. The blog in question, What Would John Wayne Do?, is hosted by a firearms enthusiast. WELL, suddenly TONE got comment after comment--all from gun fanciers (I trust that they will not be offended by that term). I haven't counted, but there may be as many comments on that one post as on all the other posts this year.

(While it's nice to be popular, I moderate comments to keep out spam--the policy is to publish anything that isn't defamatory or commercial--so keeping up takes time. And I got drawn into the debate, which took more.)

I wonder, though, why this subject generates so much heat. Given the power of the NRA and other organizations of those who favor a relaxed approach to firearms regulation, the millions of Americans who own guns and the millions of firearms that are in American homes (and on American streets, but that's another subject), why is there such a need to contend so vigorously with even such a mild expression of dissent as mine? (And let's face it, TONE's readership doesn't approach that of The New York Times or the Daily Kos.) I don't question the legitimacy of the positions taken by those who have taken the time to post comments--many of them make good points. But I do question whether the subject is really more important than the other issues that TONE comments on, like the damage done to our constitutional system in the name of a "War on Terror," the Iraq war, corruption in government, the challenge of climate change and the like. To me, the debate over gun regulation is an important issue, but its not the only issue, or even the most important right now.

Ah well, that's what makes horse racing.

Tuesday, June 26, 2007

Money talks

"They say money talks. I thought that was the problem."
Prof. Paul Freund, commenting on Buckley v. Valeo,1976.

Buckley v. Valeo was the case in which the Supreme Court first decided that the wealthy can spend their own money to further their political campaigns without let or hindrance. The central idea underlying that case--that money equals speech--has led to the political situation today, where wealth dominates our politics.

But does the First Amendment really empower the wealthy or organized pressure groups by protecting their right to spend money? The Amendment says that speech shall be free; it does not say that some people have the right to drown out others, nor does it hold that some speech is more valuable than others.

Would it violate the First Amendment if reasonable limits applied to all individuals, whether they are contributing to someone else's campaign or supporting their own? As long as the limits were the same for all, how would freedom of speech be impeded?

"Conservative" jurists like to concentrate on the text of the constitutional or statutory provision at issue. It's time to look at the First Amendment that way--at what it says, and at what it doesn't.

The children shall lead us

From Andrew Sullivan: High school honor students invited to meet the President handed him a letter saying,

"We do not want America to represent torture. We urge you to do all in your power to stop violations of the human rights of detainees, to cease illegal renditions, and to apply the Geneva Convention to all detainees, including those designated enemy combatants."

Watch the video from Anderson Cooper's show last night.

Rehnquist's triumph

In 1937, the Supreme Court decided West Coast Hotel v. Parrish, the case in which the majority blinked and accepted the New Deal measures designed to lift the nation out of the Depression. Before that, the court and its membership had been a galvanizing issue for liberals and others on the Left. The current court's recent decisions will return its membership and its philosophy to first-rank status among issues that liberals, progressives and even moderates care about. Yes, I know that pro-choice forces have long warned of what would happen if Republicans were permitted to continue packing the courts with anti-abortion ideologues, but the hard-right decisions of today's court will mobilize many more people.

In a series of cases over the past few months, the court has decided that corporations, PACS and others with money have free speech rights, that high-school students don't, and that taxpayers can't sue the President to enforce the First Amendment's command to separate church and state. Earlier, the court further limited shareholders' ability to sue brokers and investment bankers for fraud, upheld a ban on so-called partial-birth abortion, ruled that a woman could not sue for equal pay because she had waited too long since her last (unequal) raise, and told a prisoner that he could not appeal because he had made the mistake of believing a federal judge's calculation of the date by which the appeal had to be filed.

Taken together, these decisions--most by a 5-4 majority--reveal the triumph of the late Chief Justice Rehnquist's philosophy, although the use of that word implies the presence of an over-arching set of principles that is absent from the court's reasoning. The rule of decision that the late Chief Justice followed, and which is a pretty good guide to the present court's decisions on important issues, is this: When an individual goes up against the government, the individual loses; when an individual goes up against a corporation, the individual loses; when the government goes against a corporation, the government loses.

For decades, the membership of the federal courts has galvanized the Right. Now it's time for the Left to take up the cause of principled decision-making that the Supreme Court has largely abandoned on important issues.


Monday, June 25, 2007

There's still time

As you've undoubtedly heard, Deadeye Dick Cheney has now proclaimed that he is NOT, despite what you have heard and the text of the Constitution, a member of the Executive Branch. (Maureen Dowd had a wonderful analysis of this yesterday.)

There's an old adage in law that you can't have it both ways. That's lawyer talk for what's sauce for the goose is sauce for the gander. Put still another way, if Deadeye Dick is not a member of the Executive Branch, then he doesn't get to claim executive privilege, and Congress can call him in to spill the beans about everything from his energy task force to deliberations about Iraq and the shenanigans at the Justice Department.

Cheney has really gone off the deep end here. If this is an example of the way his mind is working now, he should be removed from office on the ground of mental incompetence.

TONE has advocated impeaching the President, but in his lame-duckiness it's clear that that isn't going to happen. The Vice-President is different however. The administration has 19 months left in office. That's plenty of time to put Deadeye Dick in the dock.

Scary stuff

If you go to the very tippy-top of the page, you'll see a tab that says "next blog." Click it and you'd find a more-or-less random pick from the thousands of Blogspot publications. Here's the one I got when I hit the button just now. Sheesh.

Heroes all

"I didn't have any choice. They sank my boat."
--John F. Kennedy when asked how he became a war hero.

You may have heard the heartfelt praise that Charleston, S.C., Fire Chief Russell "Rusty" Thomas heaped upon the nine firefighters who died a week ago today. The tributes were certainly merited, but let's remember that every man and woman who fights fires is heroic.

Most of what we call heroism is reactive--like JFK's exploits after his PT boat was cut in two by a Japanese destroyer. I do not mean to belittle such exploits; many people faced with a sudden challenge fail the test. But there is a special kind of courage in the person who knows there is danger and goes forward to meet it.

Breaking News!

Always trying to bring you the news that really matters....

Prince William has reported resumed his relationship with Kate Middleton, according to British newspapers. The story is especially significant, because, having just turned 25, the Prince can now marry without the Queen's approval.

(I don't follow this stuff, but it does strike me that the royal family could use some new blood; a commoner like Ms. Middleton might help the line.)

Thursday, June 21, 2007

Good question

A regular reader (who wishes to remain nameless) asks this question: If Hamas can smuggle guns and ammunition into Gaza, why can't it smuggle in medicine and baby formula, if not solid food?

Bad news for Mitt

The co-chair of Mitt ("Flipper") Romney's Utah finance committee has been sued for child abuse by no fewer than 133 plaintiffs, according to The Hill. The plaintiffs allege that Robert Lichfield operated schools where children were subject to "physical abuse, emotional abuse and sexual abuse."

This is bad news for Mitt, potentially worse than the indictment of Rudi's S.C. now-former-chairman on drug-distribution charges. The mention of child abuse in a major Romney supporter--especially one from Utah--will play into widespread prejudice against the former governor's Mormon faith; there's no connection, of course (for all I know, Lichfield might not be a Mormon), but the suit will remind people who want to be reminded of such things about stories of abuse from polygamous break-away Mormon sects. Bigots don't need evidence, of course, but a story that seems to justify their prejudice is always welcome. Unfortunately for Mitt, prejudice against Mormons seems more deeply rooted in his party than in the nation at large.

(I don't know much about Mormon theology, and I haven't known many people who identified themselves as Mormons, but the ones I have met have seemed to me to be extraordinarily decent people. As TONE has suggested in the past, the question isn't whether a Mormon should be President, but which Mormon we might vote for. Mitt isn't the one, but that has nothing to do with this latest story.)

Bloomberg boomlet

The press is awash in speculation about whether New York mayor Michael Bloomberg intends to run for President as an independent, or perhaps on a third-party ticket; the National Edition of today's New York Times has two stories on the front page. (The website gives it somewhat less prominence.)

Let's remember something basic: Bloomberg is not going to be the next President. Even if he went back to the Democratic Party--which he bolted to get the Repubs' nomination for mayor in 2001--he would not stand a chance of obtaining the nomination, and he isn't going to win the White House as a third-party candidate, either; think Ross Perot, who got less than 20 percent of the vote in 1992.

So, the Mayor's only role would be as a spoiler and, given his positions on issues like abortion, gay marriage and gun control, his candidacy would aid the Repubs. Given those positions, there's no logical reason why Bloomberg should run. So, if he does enter the race, it's a matter of ego winning out over good sense.

(I haven't seen much of him--not living in New York any more, thanks be to G_d--but the Mayor seems like a sensible man. Still, no self-made billionaire can be short in the ego department.)

Wednesday, June 20, 2007

Oops, again

Rudy got more bad publicity yesterday. Newsday reported that he resigned from the Iraq Study Group after being told that he had to come to meetings or leave. At the same time, he was out giving speeches that brought him more than $10 million a year.

What kind of behavior is that for a candidate whose strong suit (maybe his only suit, as far as Republican voters are concerned) is national security?

Talkingpointsmemo points out that Giuliani ducks the Iraq issue whenever possible. How long before one of his Repub competitors makes a serious point about this?


Seems that Rudy Giuliani's South Carolina state chairman (the state treasurer, too) has been indicted for buying "less than 500 grams" of cocaine. According to the NYT, Thomas Ravenel, a 44 year-old millionaire and member of one of the state's leading families, intended to "share" the drug with "other people."

At least one early report said that Ravenel had been charged with distributing crack, which would carry a much higher sentence. This bears attention--was the report wrong, or did the US Attorney decide to charge cocaine when crack was involved? Remember that a few years ago, the Supreme Court decided that the disparate penalties between crack and powder cocaine are not discriminatory, even though an overwhelming proportion of defendants charged with crimes involving crack are black.

Oh, by the way, 500 grams is 1.1 pounds, a considerable quantity might be involved

(Mr. Ravenel quickly resigned from Rudy's campaign, and was suspended as state treasurer.)

Tuesday, June 19, 2007

Cutting the heart out

Seymour Hersh (Sy to his friends) has another piece in The New Yorker exposing the essential corruption of the administration, particularly in its handling of the war and related issues. This time, Hersh focuses on Gen. Antonio Taguba's investigation of the horrors at abu Ghraib.

The thing is, Taguba played it straight and told the truth. We might say that he upheld the honor of the US Army in the way he conducted himself--something to retrieve the shame visited upon the institution and the nation by what went on at abu Ghraib.

So, what happened to Gen. Taguba? Rumsfeld and company made sure that his military career ended abruptly, of course, and stuffed his report in a drawer.

We can talk about the cover-up, the scapegoating of a few enlisted personnel, the way that the events at the prison outside Kabul caused incalculable damage to America's position in the world. But at least as important is the example of Gen. Taguba, sacrificed for doing his duty. What does that say to everyone else in the United States Army, and the other military forces as well? What does it say about honor and professionalism?

When this administration is but a sad memory, when the prosecutions are finally over, the nation will still depend on our military to protect us from the very real threats that will continue for decades. The damage done to the military establishment by Bush, Cheney, Rumsfeld, et als, will be felt--very likely in the form of dead Americans--long after the malefactors are gone.

Monday, June 18, 2007

Why do they do that?

While I'm in a curmudgeonly mood (when is he not? you ask), why do merchants keep re-arranging stores? Today I was in my local CVS, a store that I kind of knew after they re-arranged it a few months ago, only to find that they've done it again. The powers-that-be are constantly re-doing parts of the Trader Joe's I go to, guaranteeing that I'll be lost for something, or maybe everything, on my list.

Memo to people in the retail business: It helps if your customers can find what they're looking for.

Sunday, June 17, 2007

Baby on board

In the last few weeks, I've noticed a resurgence in those yellow-and-black "baby on board" signs in car windows. I gnash my teeth every time I see one.

I think it's of the egocentrism that these notices display: We're important, because we had a baby! Lots of people have babies. The question is not how other people react to that, but how well you do as a parent. Sticking a plastic sign in the rear window of your car doesn't mean much compared to how you treat your child--and if you think it does, then maybe you don't deserve to have one.

Then, too, it might be that what bothers me is the suspicion that those people are already living their lives through the children.

(It's especially annoying, of course, when one of the baby-on-board folks drives like an idiot.)

Friday, June 15, 2007

How progress is made

From Pam Belluck's story on the vote by the Massachusetts legislature, refusing to send a measure that would ban same-sex marriage to the voters. Speaking of Gale Candaras, a state senator who changed her vote on the issue:

"Most moving, she said, were older constituents who had changed their views after meeting gay men and lesbians. One woman had 'asked me to put it on the ballot for a vote, but since then a lovely couple moved in,' Ms. Candaras said. 'She said, "They help me with my lawn, and if there can’t be marriage in Massachusetts, they’ll leave and they can’t help me with my lawn.”'"

Good Americans

Bradley Scholzman, a high official in the Gonzalez Justice Department who was raked over the coals by the Senate Judiciary Committee last week, was the subject of a complaint by several women attorneys in the appellate section of the Civil Rights Division, who charged that he replaced a number of women of various ethnicities with white, Christian males.

Allegedly, Schlozman told one new attorney that he was intent on replacing the women with "good Americans."

Why is it that people who use phrases like that wouldn't know a good American if he (or she) walked up and smacked him in the nose? Which is what he deserves.

Two state solution

That's what Palestinians with an ironic bent are calling the division of the West Bank and Gaza between Fatah and Hamas.

Will there come a time when moderate Palestinians and moderate Israelis realize that they have more in common with each other than with the extremists on their respective sides? And might that prove durable enough to obtain for the Palestinians a state--one that is dedicated to living in peace with its neighbor? (Because if the Palestinians do not prove that they are able to live peacefully with Israel, there will be no state.)

Sunday, June 10, 2007

Whose ox is Borked

Robert Bork, eternally angry apostle and legal guru of the Right, seems to have forgotten "conservatives'" disdain for punitive damages. He seeks no less than $1,000,000 in compensatory damages, plus punitive damages, from the Yale Club of New York (of all places) for injuries he allegedly suffered in a fall while mounting the podium to give a speech there.

This is reminiscent of the case of now-ex-Senator Rick Sanctimonious, whose wife had no problem in accepting a $350,000 malpractice award from a Virginia jury, after the then-senator had called for caps on malpractice damages. (Ironically, the trial judge reduced the verdict to $175,000.)

Just a thought

Repubs want to inject politics into morality, rather than morality into politics.

In a phrase

Rep. Barney Frank (D. MA--and my congressman) on anti-government Repubs handling the public's business:

"It's like putting vegetarians in charge of the meat department."

Wednesday, June 06, 2007

Rule of Law

Last week, I had the privilege to attend a dinner at which Prof. Neil Katyal and Lt. Cmdr. Charles Swift, the lead attorneys for Salim Hamdan in his case before the Supreme Court last year, were honored for their work. (Hamdan's was the case in which the Supreme Court declared that detainees at Guantanamo do have the protections of law and legal process.) They were both awe-inspiring in their intelligence, dedication to the law and courage.

Lt. Cmdr. Swift told two stories that bear repeating. (I'll apologize to him in advance, because I am doing this from memory.) He recalled going to his 20th reunion at the Naval Academy and being "cornered," as he put it, by a classmate who had gone into the Marines. Cmdr. Swift described the man as a complete Marine and said, "If someone shot at an American, anywhere in the world, in the last 20 years, it was probably at him." The Marine officer came up to Cmdr. Swift who expected to get blasted for representing an al-Qaeda terrorist. (Hamdan is accused of having been Osama bin-Laden's chauffeur.) What the man said was, "The rule of law is what I fight for. Men die for that!"

The second story was about a trip to Hamdan's home in Yemen, to gather information for the case. Cmdr. Swift took along a female JAG officer, who could speak to the women and go into their portion of the house. As the Americans were getting ready to leave, the grandmother--the matriarch of the family--gathered her granddaughters together. Cmdr. Swift describes this woman as having grown up in a society that had not changed since the 7th Century; she did not know there was such a thing as radio until she was 30. The older women quieted her granddaughters and pointed at the American woman. "Look at Susan," she said. "She went to school. She worked very hard, and she became a lawyer. If you go to school and work hard, you can do anything!" That, as the Commander said, is what the US should be about--spreading the ideas that gave this country its unique place in the world. Instead, we quaver in fear of the terrorists, and display our fear in every action at Guantanamo.

Prof. Katyal and Lt. Cmdr. Swift have shown the courage that our national leaders lack. They are the best of my profession, and the best of this nation.


on the Republicans' debate last night (the TV was on but the sound was down):

--The only candidate with Republican Hair (best exemplified by Trent Lott) is Mitt Romney.

--Conversely, Tommy Thompson (how is he still a candidate?) has the worst rug in the world: perched precariously atop his dome, and an obviously fake shade of redwood brown

--More than half of the Repubs running for President are unrecognizable to anyone outside their immediate families. And maybe not to them.

Monday, June 04, 2007

Hail and farwell

Shay-Shay, our odd but beloved kitty, lost a long battle with kidney disease early this morning. He followed his sister, Natasha, who went to her rest just over two months ago.

Shay was a strange fellow, born with four mis-matched feet, only three usable legs and several other congenital deformities. With a feisty--to say the least--personality, he took some getting used to, but he was sociable and, as he mellowed in a loving home, very affectionate. Until recently, one of his favorite pastimes was to lick my arm like a dog might.

Shay was chosen by my friend Rosemarie, who took him from a shelter despite his physical unconventionalities; without Rose, his life would almost certainly have been quite short. When she could not care for him, she asked me if I'd take him temporarily. That turned out to be thirteen years, in which he grew to be an integral part of our household. It sure seems quiet and empty without him.

Despite his small stature, Shay was a tough guy. He was hospitalized twice with serious kidney infections and had been battling one (with apparent success) as an outpatient when he began to fail about two weeks ago. The vet said that she didn't know another cat who would have survived even one of these challenges. He might not have looked like it, but he had the soul of his distant cousin, the lion.

Good-bye Mr. Shay. You'll always be our special guy.