Scalia: Conduct unbecoming a Supreme Court Justice (A Long Post!)

A friend of mine, who is a paralegal interested in constitutional law and a strong believer in the sanctity of the Supreme Court as an institution, asked me to re-read Justice Scalia's majority opinion in Heller and see if I thought, as she did, that Scalia was personally attacking Justice Stevens. She also asked me to compare the way Scalia attacked Stevens' arguments with the way he disagreed with Justice Breyer's separate dissent.

I have now done so and I have to admit she is correct. Scalia was very dismissive, in an unprofessional manner, with respect to Stevens. Scalia was also far more professional when disagreeing with Justice Breyer. Worse, after comparing what Scalia says Stevens says, with what Stevens actually said in his dissenting opinion, I have concluded Scalia was not only acting below the standard of a proper Supreme Court Justice, but is also wrongly treating judicial opinions as if they were mere partisan blogs.

Throughout Scalia's opinion, Scalia uses judicially intemperate colloquialisms and hyperbole against Stevens. At various points in his majority opinion, Scalia says that Stevens is "dead wrong" on a particular issue (page 6, footnote 5 of the opinion). He later labels alleged arguments from Stevens as "grotesque" (page 13 of the opinion), "bizarre" (page 18, footnote 14), and "wrongheaded" (page 50 of opinion). At another point, Scalia flames as if he was writing an email, stating that Stevens "betrays a fundamental misunderstanding of a court’s interpretive task..." (page 32 of Scalia's opinion). This was breathtaking to me because, outside of Stevens' admittedly outraged opinion in Bush v. Gore, most sober commentators who have read Stevens' opinions over the years would never say such things about Stevens.

What follows is an admittedly long sampling of Scalia's invective and hyperbole (and distortions) that perhaps only court watcher junkies may find interesting. Suffice it to say, for general non-lawyer readers, that the style of Scalia's opinion was conduct unbecoming for a Supreme Court Justice. And sadly, one must also castigate the Chief Justice, John Roberts, for signing off on Scalia's opinion without commenting on its lack of professionalism. This is true regardless of whether concludes Scalia was also distorting or misleading people with respect to Stevens' dissent:

1. "Dead wrong": Scalia says Stevens is "dead wrong" in saying the First Amendment right to petition is "primarily collective." Yes, Stevens does say that at page 10 of his dissent. But Stevens also says, in the same paragraph that he recognizes the First Amendment right to petition also protects individuals. Yet, Scalia never lets us know Stevens said that. As Dustin Hoffman's Captain Hook would say, that is "bad form."

2. "Grotseque": When Scalia says Stevens is making a "grotesque" argument, he is actually caricaturing Stevens' argument and then attacking the caricature. Scalia, at pages 12 and 13 of his opinion, attacks Stevens for stating that various sources define the term "arms" in the context of military activities, not private protections of property. Scalia claims Stevens cites no dictionary definitions or legal authority for his point, when, in fact, at pages 11-12 of Stevens' dissent, Stevens cites the Oxford Dictionary and case law supporting his position. Then, Scalia accuses Stevens of (purposefully?) confusing different meanings of the word "arms," and also using a definition that renders the phrase "keep and bear arms" "incoherent." Scalia then creates this example: "It would be rather like saying 'He filled and kicked the bucket” to mean “He filled the bucket and died.' Grotesque." The only thing "grotesque" is Scalia's example, which lamely attempts to obscure Stevens' point about the term "arms" being defined in a military context at the time of the Constitution's founding.

Ironically, I think a better answer to Stevens' point is that there is an implicit individual right along with the collective right in the Second Amendment, just as in the First Amendment's right to petition. There is no need, however, for the hyperbole or invective Scalia used. Perhaps Scalia needs the hyperbole to hide the fact Scalia's citation of philosphy and history is inconsistent with his claim to be a "textualist," i.e. studying a text and not legislative intent.

3. "Bizarre": Scalia finds it "bizarre" for Stevens to note that the lack of the word "to" between the words "and" and "bear" in the phrase "to keep and bear arms" may require a different interpretation of the amendment from Scalia's (and my) interpretation. Scalia says, at page 18, footnote 14: "We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one." Well, may I at least suggest another unusual grammatical analogy in a legislative context? Perhaps the supposedly learned Scalia never heard about the controversy over the phrasing of United Nations Resolution 242 and the missing "the" before the phrase "territories occupied." Israeli hawks says that because the phrase is about Israel giving back "territories occupied"--not Israel giving back "the occupied territories," that Israel should not be required to give back more than some of the occupied territories. If we find that argument lacking substance in its particular application, and I personally do, I would still have to admit that some very important people, including then US-Amabassador to the UN, Arthur Goldberg, supported that argument later in his life. Instead, Scalia acts with a partisan's glibness in dismissing Stevens' gramatical point as "bizarre"--and therefore not worth reading. This again is not conduct becoming a trial judge, let alone a Justice of the Supreme Court.

4. Justice Story and the Second Amendment: Scalia attacks Stevens for not understanding the early 19th Century Supreme Court Justice, Joseph Story's view on the Second Amendment. See: pages 35-36 of Scalia's opinion. Scalia says Stevens wrote that there was not a "whisper," in Story's 1833 treatise on the Constitution, concerning the right of an individual to bear arms for purposes outside the militia context. Stevens, however, was not making so broad a statement. Instead, he was talking about one particular passage in Justice Story's Constitutional commentaries (section 1897 of the commentaries). At page 34 of Stevens' dissent, Stevens wrote: "There is not so much as a whisper in the passage above that Story believed that the right secured by the Amendment bore any relation to private use or possession of weapons for activities like hunting or personal self-defense." (Italics added by MF Blog)

Scalia's quotation from Story's 1833 Constitutional commentaries is from a different section (section 1891)--and does not directly disprove Stevens' point. See: Scalia's majority opinion, page 35, where Scalia must make his point by implication, not an exact statement from Justice Story. Scalia, in attacking Stevens, then has to resort to quoting a Tenneesee State Court from 1871 that merely provided that Southern Court's interpretation of Justice Story's overall views. Then, Scalia goes on to quote a different essay from Justice Story in 1840 which states:

"One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” (MF Blog emphasis).

Again, this quote does not prove Scalia's point. For the use of the word "and" at the start of my emphasis would generally mean what follows is necessary to the subject of what tyrants do to disarm people. It does not, at least grammatically, mean Story is directly expressing an individual's right to bear arms on behalf of that individual, as opposed to being part of a self-regulating militia. Despite this failure of proof, Scalia again ridiculed Stevens with hyperbolic phrasing.

In addition to the above, Scalia makes arguments that themselves are petulant in tone--and not even necessary to his opinion (Remember: I agree with Scalia's overall conclusion that the Second Amendment does provide for a limited individual right to "keep and bear arms"). For example, Scalia tries to erase by argument the first phrase of the Second Amendment, which concerns the need for a well-regulated "militia," by calling the phrase a "preamble". But read pages 3 and 4 of Scalia's opinion and see if you can find any direct legal precedent concerning the first portion of the Second Amendment which supports Justice Scalia's argument.

While it is generally true that a preamble has little or no interpretative value for a particular statutory interpretation, Scalia is being incredibly glib in trying to read out the first section of the Second Amendment. Despite not having any direct case authority or contemporary Founders' intent to treat the first portion of the Second Amendment as a "preamble," Scalia, in footnote 3 of his majority opinion, audaciously attacks Stevens for questioning Scalia's "preamble" argument. At page 4 of Scalia's opinion, Scalia writes in a kingly manner, "Logic demands..." his argument be accepted as a judicially mandated conclusion when, in fact, Scalia's "logic" demands nothing of the sort. Let's read the Second Amendment in its entirety so we can see what Scalia is up to in the opening section of the opinion--which I felt was unncessary to the opinion's conclusion:

The Second Amendment reads, again: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Does that opening section regarding the "militia" truly resemble a "premable," such as "Whereas" in a contract? See: Footnote 4, page 3 of Scalia's majority opinion, where Scalia actually compares the first portion of the Second Amendment to the "whereas" in a contract. Talk about "grotesque" or "bizarre"...

I could go on, but I think I'd have to change my blogging tone and turn the post into a law review article. I should say, in some defense of Scalia, that in footnote 5 of his opinion, he says Stevens wrote something right: Scalia says Stevens is correct that the right to "assemble" cannot be done "alone." Yet, it is in that same footnote that he tells us Stevens is "dead wrong" about whether the right to petition the government is a collective right, again not informing the reader Stevens said the right to petition was an individual right, as well, despite the First Amendment using the collective term "the people" (The phrase in the First Amendment states: "The right of the people peaceably to assemble, and to petition the Government for a redress of grievances...").

Overall, I think the reason I missed this the first time is that I expect Scalia to act this way. His opinions are legendary for being less than respectful toward his colleagues. However, this opinion, when reviewed a second time, goes way over the top in its relentless and pervasive attack on the credibility and integrity of Stevens. Yet, as I have shown, it is Scalia's credibility and integrity which should really be questioned.

What bothers me even more than Scalia's conduct in writing such a invective-laden opinion against a fellow Justice is that Chief Justice Roberts signed his name to the opinion without commenting about its coarseness in a concurring opinion. Roberts, who came to the Chief Justice position telling the Senate and the nation that he would restore or at least promote civility, instead affirmed the coarse and unprofessional--and disrespectful--sensibility of Justice Scalia. For shame, Mr. Chief Justice, for shame. And shame on Justice Scalia for degrading the institution of the US Supreme Court with judicial opinions that read like he wants to be Rush Limbaugh.

P.S.

I offer a personal story: In the mid-1990s, I was able to directly question Scalia in an open forum in Orange County during an question and answer period after a debate Scalia had with Judge Reinhardt (of the infamous 9th Circuit (Federal) Court of Appeals) on the subject of "originalism." After Scalia spent 45 minutes questioning Reinhardt's integrity and telling us that he, Scalia, reached his decisions through an understanding of the "original intent" of the Founders, I stood up and was able to ask this question*, which I paraphrase: "Isn't it true, Mr. Justice, that, in most cases which come before you at the Supreme Court, you and the other Justices have no record to rely upon to ascertain the original intent of the Founders?" Scalia then sat back in his chair, smiled and replied, "Yes, that's true."

The audience, which consisted mostly of lawyers (It was part of a "continuing legal education" weekend seminar), audibly gasped at Scalia's answer. After the Q&A, several people came running up to me to say I had slayed Scalia.

I must say, however, that minutes later, Scalia was very kind and friendly toward me. Still, I cannot help but wonder why he is so intemperate in his opinions over the years.

*The seminar was sponsored by the Jewish Orthodox-oriented Chabad. I had actually made a preliminary statement telling Scalia about the famous Talmudic story (Scroll down in link) where the Rabbis essentially tell God, "You may have written the Torah, but it is the job of the Rabbis on Earth to interpret it." I then compared it to Federalist Paper no. 37 and Madison's view that "experience" would define the vague terms used in most parts of the Constitution. The audience laughed in what I took to be support for my comparison. However, Scalia laughed and replied, "What's a Talmudic story got to do with the Constitution?" "Well," I said, "I just find it interesting that the Rabbis were willing to interpret the Torah as a living document, but you don't even want to listen to James Madison when he tells us the Constitution should be a living document." He laughed again, and that gave me the chance to ask my question cited above.

(Edited)

Mars ice and soil similar to Earth...Wow!

Mars' soil and ice are simliar to Earth's soil and ice.

This is momentous news, but too often we fail to grasp any truly cosmic thinking due to our overriding material-oriented lives.

Maybe it's time once again for a Dandelion break...

Scalia: I guess I'm for a living Constitution when it suits me...

Justice Scalia, who claims to be a texturalist and originalist, found himself, in three of the most recent Supreme Court decisions, reaching conclusions using historical and philosophical scholarship concerning the essence of the Constitution--Egad, like a "common law" judge!--in Heller (the 2nd Amendment case), Giles (the 6th Amendment case concerning the confrontation clause) and Indiana v. Edwards (another 6th Amendment case concerning self-reprsentation).

As for Heller, I think Scalia was surprisingly judicious in limiting the scope of the opinion, thus disappointing some who wanted a pronouncement even more expansive of Second Amendment rights.

As with others, I have noted the number of scholars cited in the competing majority and dissenting opinions. However, I was disappointed none of the opinions cited Garry Wills' outstanding essay in The New York Review of Books (September 21, 1995) entitled "To Keep and Bear Arms." Eugene Volokh, a highly respected Constitutional law professor at UCLA, and a strong advocate for an expansive interpretation for the Second Amendment, personally told me several years ago that he found Wills' essay to be the best pro-militia/anti-individualist position regarding the Second Amendment. Volokh has often assigned it in his classes and found it nearly persuasive. However, his criticism of Wills' essay is that, while Wills makes the case that the Second Amendment is not very strong in supporting an individual's right to bear arms, Wills fails (he says) to adequately define just what the Second Amendment means. Contrary to Volokh, I read Wills to say the key understanding of the Second Amendment is found in the first portion of the Amendment, concerning the miltia, and that first portion of the amendment qualifies the scope of the rest of the admittedly awkward sentence:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

My personal view, over the years, has been that the Second Amendment at least implies an individual's right to keep and bear guns. Wills' argument that James Madison was cyncially playing those who advocated an individual's right to bear arms is persuasive as to Madison's intent, but that ironically proves why we ought to conclude there is a private right to keep and bear guns, since so many people thought that was the essence of the amendment from the start. That is also why I go back to Scalia's narrowing of his own seemingly sweeping statement about an individual's right to bear arms, and note the narrowing language is itself rather sweeping--in order to limit the scope of the Second Amendment.

This is a large nation, both geographically and demographically. I understand why the residents of Washington, DC might want to control the proliferation and use of guns, since guns are more often used in the context of committing crime rather than protecting against crime. However, there are more than enough folks living in rural and/or isolated environments where guns have a predominant and legitimate use for hunting, as well as home and property protection.

What I also liked about Scalia's opinion is his at least implicit rejection of the argument that the purpose of the Second Amendment is the right to overthrow the government. As Wills stated in his response to critics* in a later issue of The New York Review of Books, the position that the Second Amendment is based upon the right to overthrow the government, if accepted, would implicitly and perhaps explicity undermine the Treason clause in the Constitution, and Article I of the Constitution regarding the ability of militias to suppress insurrections. Wills makes the point that the Founders, including Madison, were more interested in arming citizens for a private militia so as to obviate the need for standing armies.

*The critics include the now famous blogger, law professor Glenn Reynolds, who blogs under the name of Instapundit, and Sandy Levinson, who is a somewhat liberal law professor who is also a strong Second Amendment advocate.

As someone who is cautious in thinking he has divined the original intent of the Founders, and who firmly believes that experience is an important guide for practically applying philosophical and broad language in a Constitution--an organic more than a "living document" interpretation--I welcome Scalia's majority opinion. While I see much merit in Stevens' dissenting opinion (and slightly less persuasiveness in Breyer's more policy driven dissenting opinion), I nonetheless believe it is wrong to place the Second Amendment outside the Fourteenth Amendment's incorporation of the Bill of Rights. I also find it amusing that one may easily say Stevens' dissent reads as if he was himself a "texturalist." His focus on the words used is very much in that mode, isn't it?

Anyway, I was just finishing this post when I decided to check in again at the law blog known as Balkinization, a fairly liberal law blog, and found that law professor Jack Balkin has a highly similar take as me. He ends his post on Heller saying, "Welcome to the living Constitution, Justice Scalia. We couldn't have done it without you."

Indeed. Now maybe Scalia will get off his high horse about being a "textualist" and stop telling the rest of us we lack integrity in how we arrive at decisions. That, I must admit, is doubtful, but at least we now have more ammunition against his high horse positioning.

(Edited)

Interesting take on Israel-Hezbollah prisoner swap

Yossi Melman of Ha'aretz has an interesting, and compelling perspective on the impending Israeli-Hezbollah prisoner swap. I wonder whether we will see virulent denunciations from Jewish-American groups regarding the deal. If so, Melman's article should be required reading for those who criticize the deal.

Scalia Gitmo dissent debunked

Justice Antonin Scalia penned a ridiculous dissent in the Boumediene case, as I pointed out late in this post mostly discussing Chief Justice Roberts' own dissenting opinion in the case. I noted how Scalia cherry-picked from a minority party (Republican) Senate report that 30 Guantanamo Bay prisoners had been released and returned to their former nations--and had resumed fighting on behalf of terrorists.

Now, I have learned that the minority party study (which was based upon information from a Cheney (Bush) Defense Department press release) is itself far more suspect than many of the prisoners at Guantanamo Bay.

Initially, it is important to note that it was the Executive Branch, through the military--not any civilian court--which released what I may playfully call the Dirty Thirty. However, I did not mention that in my previous post, and so mention it here.

More devastating to Scalia and his political allies, however, is a new report from the Seton Hall University law professor who represented two prisoners at Gitmo. A key paragraph in the report states as follows:

"The Department of Defense has publicly insisted that at
least thirty (30) former Guantánamo detainees have “returned” to the battlefield, where they have been re-captured or killed. To date, however, the Department has described at most fifteen (15) possible recidivists, and has identified only seven (7) of these individuals by name. More strikingly, data provided by the Department of Defense reveals that:

• at least eight (8) of the fifteen (15) individuals identified alleged by the Government to have “returned to the fight” are accused of nothing more than speaking critically of the Government’s detention policies;

• ten (10) of the individuals have neither been re-captured nor killed by anyone;

• and of the five (5) individuals who are alleged to have been re-captured or killed, two (2) of the individuals’ names do not appear on the list of individuals who have at any time been detained at Guantánamo, and the remaining three (3) include one (1) individual who was killed in an apartment complex in Russia by local authorities and one (1) who is not listed among former Guantánamo detainees but who, after his death, has been alleged to have been detained under a different name."

The only way Scalia gets to his legal conclusion that Congress and the President can suspend habeas corpus rights in federal courts is through Scalia's hysterical belief that we are in the type of war our Founders envisioned to trigger the application of the Suspension Clause of the US Constitution. The clause states:

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Now, really, was the attack on September 11, 2001 a Rebellion inside America like, say, the US Civil War? Nope. Was it an "Invasion (where) the public Safety may require it"? Maybe in the first days or weeks after the events of 9/11/2001, but certainly not after the first year. The question before the Justices was not simply some theoretical exercise about Presidential and Congressional authority in a time of war. It was whether we could justify keeping the people at Gitmo locked up with no real access to the Court system, including the right to petition for habeas corpus--even six years after some were placed there.

As I said in my previous post, the Cheney (Bush) administration lost its credibility to say "Just trust us" a long time ago. And as this new book about the infamous 1950s case, known as the Reynolds case, reminds us, government leaders in the Executive and Legislative branches should not be given too much benefit of the doubt when claiming "national security."

(Edited)

George Carlin: 1937-2008

George Carlin died this afternoon of a heart attack.

I recall seeing Carlin on television back in the mid-1960s, when he was clean cut, and did a routine about a newscast that included "The Hippy Dippy Weatherman." If memory serves, Carlin appeared on either the Jackie Gleason variety hour, or perhaps one of its "summer replacement" variety shows, which I believe was the Al Hirt variety show. Al Hirt was a respected musician among musicians, but had a more general reputation much like that of Lawrence Welk.

By the early 1970s, Carlin came out of the comedy closet to be like his hero (and mine), Lenny Bruce. He became the hippy dippy weatherman in terms of hair length and clothing--and became controversial (watch language!) and then extremely, hugely successful--as I would assume most readers of this blog would already know.

If you had to name three of the great mid- to late 20th Century era stand up comics, you'd probably include one of three names or perhaps all three: Lenny Bruce, Richard Pryor and George Carlin.

To close this post, here is Carlin on religion (also watch language!). The beginning of the routine makes you think he is an out and out athiest. However, as it goes on, you almost hate to break it to him that he is really wrestling with God. Heretical yes, but not necessarily atheistic.

George, we already miss you. Hopefully, you found out whether you were wrong or right about God. Either way, I'm sure God always found you very funny...and yes insightful.

Three Times' Book Reviews

1. In the NY Times Book Review:

a. Forget the review of the latest Cuban Missile Crisis book. Read instead this succinct, yet fascinating review of a book documenting the rise of the blockbuster animation studio, Pixar. What Pixar's main creative mind, John Lasseter, understood was that great cartoons have great stories and great dialogue--not just great animation. The review gives less attention to Lasseter, but does show why Steve Jobs is a true genius among businessmen and why Michael Eisner is dreadfully overrated. I was surprised, however, that Jeffrey Katzenberg also missed the significance of Pixar as he is as much a hero of mine as Jobs in terms of vision as well as the execution of successful business models.

b. This review deserved to be longer and more detailed, but gives the reader a glimpse of how virulent our nation's racism was in the early 20th Century. The review concerns a race riot in Arkansas in 1919 where the blacks got hit with the worst of it, and 12 black men were wrongfully blamed for the riot and sentenced to death. The book also deals with the lawsuits to free those men. The review mentions a book on the subject of how segregation laws became so prevalent in the South and other regions of the US after the Civil War, and how it was achieved in the South especially through violence. The book, "Slavery by another name" by Douglas Blackmon (Doubleday 2008), seems like a solid read. I wonder, though, if it is as directly explanatory as the late, great Rayford Logan's "Betrayal of the Negro" (1954 original published date, Da Capo edition 1997). Logan's book is definitely worth reading, but I am hoping to find and read Blackmon's book later this year.

2. Los Angeles Times Sunday book review:

a. Here is a review of a fascinating and timely book about how the US government leaders tend to lie about nearly everything under the catchphrase "national security." Barry Sigel's "Claim of Privilege" appears to be worth the read, and the dependable and passionate Edward Lazarus' review does the book and the topic justice.

b. Here is an interesting and well-written review of a novel, "Steer Toward Rock" by Fae Mae Ng which sounds outstanding and itself well-written. I love novels that dare to move beyond navel-gazing and instead embrace larger societal history and contexts. This novel sounds like such a work of literature.

3. London Times (Times Literary Supplement):

This week, there is a sadly ignorant review by an overextended historian, Niall Ferguson, speculating that people, to a siginficant extent, criticize Henry Kissinger because he is Jewish. Hogwash. Ferguson thinks by acknowledging in one sentence in the article that Jewish writers have blasted Kissinger that nobody will notice the ridiculousness of his theory. I pity the fool, as Mr. T liked to say. Since Ferguson won't even name the Jewish writers who have revealed the war criminal essence that is Henry Kissinger, I will: (1) Sy Hersh's magisterial, "The Price of Power" (Summit Books, 1983), which may be Hersh's finest book and which holds up almost perfectly after 25 years (The Amazon site has nothing about the book, but see this pre-book article by Hersh published in The Atlantic from 1982) (2) Walter Isaacson's biography of Kissinger, which is devastating as it appears throughout the book that Isaccson so wants to like and support Kissinger and refute Hersh--but can't (Ferguson mentions Isaacson's book in his review, but leads the reader to believe it is only "broadly sympathetic"); (3) the thinly veiled novel by Joseph Heller, "Good as Gold" (Simon & Schuster, 1979), which is provides us insight into the cultural "decadence" of the 1970s and academic ego battles that spill over into Washington, DC politics. Heller loved this book as much as his much-acclaimed "Catch 22".

Worse, when discussing the Vietnam War, and the Nixon/Kissinger role in its last phases, Ferguson fails to alert the reader that the North Vietnamese provided essentially the same offer to the US in 1969 that they accepted in January 1973--except by 1973, the North Vietnamese had far more troops inside South Vietnam which were mostly allowed to stay (Stanley Karnow's book on Vietnam makes this point, however understated). I also find it amusing that Ferguson fails to understand the difference between Nixon/Kissinger's interference and involvement in undermining Chilean democracy compared to the odious Dean Rusk and even more odious John Foster Dulles. Ferguson forgets that, during the reign of those other two Secretaries of State, Chile was fairly manageable from a US imperialist perspective, unlike the point when Allende--a Socialist (boo!)--was elected in 1970, a time when Kissinger had already begun acting like the Secretary of State from his perch at the National Security Council.

Fergruson further reveals his surprising ignorance when asking why nobody wrote a polemic against Dulles or Rusk the way Christopher Hitchens wrote one against Kissinger. I guess Ferguson doesn't know about Townsend Hoopes ("The Devil and John Foster Dulles," Little, Brown 1973) and Leonard Mosley and their polemical bios of Dulles--or the Christopher Simpson book, "The Splendid Blond Beast," (Grove Press, 1993) which all but expressly called Dulles a Nazi fellow traveler. Dean Rusk? Not so much, but that has to do more with the fact that Rusk was a less powerful player than either Kissinger or Dulles--but Rusk himself was ripped pretty strongly in David Halberstam's majestic, "The Best and the Brightest" (original hardcover, Random House, 1972) as well as in Telford Taylor's "Nuremberg and Vietnam" (1970).

One could go on, but suffice it to say that Ferguson is a poor historical guide to American foreign affairs in the mid- to late 20th Century, and sadly, it sounds like Jeremi Suri's new book, entitled "Kissinger and the American Century" lacks substance and wisdom as well. Are we really going to start to feel sorry for Kissinger because we are told Kissinger learned to lack faith in open government from his experiences as a child during the Nazi era in Germany? How does that excuse Kissinger's truly Nazi-like behavior in bombing cities of people on behalf of the most imperial interests--as well as his duplicitousness that showed a contempt for people?

What is also really sad is Ferguson is a "made" historian, whose articles appear in the other two Times (LA and NY). This latest article in the London Times Literary Supplement is simply the latest exhibit proving Ferguson's mediocre knowledge of history. Too bad, really, because Ferguson is somewhat of an exponent of "counterfactuals" and, as readers know, I have a pretty good grounding in that subject...

Enough for now. Enjoy the book reviews sections of the various Times.

According to AIPAC, Israel must be anti-Israel

While American politicians are required to genuflect to the most extreme wing of the Likud Party when they appear at AIPAC and other Israeli and Jewish organizations, and say things like, "We will never negotiate with terrorists," it appears the Israeli government has done just that.

See here for the news that Israel and Hamas are putting the final touches on a ceasefire, which ceasefire is being brokered by Eygpt.

Here is AIPAC's official policy with regard to Hamas. Note it states, at the bottom of the link, that Israel should not be "forced" to negotiate. That is not a distinction that politicians are allowed to make in actual policy actions, nor is that a distinction AIPAC is interested in making--except when Israel decides to negotiate with terrorists. AIPAC's position, even with that subtlety, is still wrong because it goes against the point that sometimes it takes a friend to help another friend do what needs to be done. You know, "Friends don't let friends drive cars home when drunk." Well, the same should apply where we should say, as a matter of policy, that the US should have the right to at least say to Israel from time to time, "Don't you think you should be negotiating a cease fire or permanent peace with a government led by Hamas?" And maybe put some pressure on Israel to do so.

The American political discourse on Israel will remain at the level of a screaming five year old until American politicians can stand up to the likes of AIPAC.

(Edited)

Congrats to the Celts, and a dance a farewell to Cyd Charisse

My Lakers got crushed tonight. I was going to watch the entire game, but by halftime, I was convinced the Lakers, outside of Kobe and Fisher, lacked heart and strength--two qualities that teams must have to win the NBA Finals. I decided instead to take a long, healthy walk with my son, where we discussed some sports, lots of music history and general talk about his upcoming summer course to ready him for 9th Grade Honors Math (Algebra 3/4).

On the bright side of the NBA Finals, it is nice to see Kevin Garnett win a Finals trophy. Good for him--and good for the Celts, whose fans suffered through some horrible seasons these past 22 years.

The Lakers have some fine young players--and Gasol showed he is good, but not yet great. When Andrew Bynum returns, and continues to improve in his strength and desire, the Lakers may be back to the Finals in a year or two, and be a better representative from the Western Conference. Stay strong, Kobe. And Lakers, don't lose Farmar under any circumstances. He may prove to be the new Derek Fisher. After Fish retires, he will make one of the greatest coaches the NBA will ever see...

And in some sad news tonight, actress and dancer Cyd Charisse passed away at age 86. Here is a lovely photograph of her from one of her lesser known films.

(Edited title and content)

Warning signs for Obama in latest polling

The Washington Post latest polling shows Obama ahead of McCain by 48% to 42%. This is not good news for Obama. For Democrats, consistently receiving less than 50% of the vote is a problem--unless Bob Barr gets some traction in the corporate media, which is not happening so far. See this NY Times article for an exception to the overall media blackout of Barr. Republicans often have a hidden bump in actual voting, particularly among likely voters, who tend to be very affluent. McCain also will receive a bump from those white voters below the polling radar who will not support a half-black man for president.

Worse, on the issues of "experience" and the war in Iraq, the polling shows McCain ahead of Obama. As for experience, I keep reminding people that McCain's experience is in screwing up, whether it was getting shot down, sitting around in the Senate and never learning anything about economics, health care policy, energy policy, etc. At least Obama has shown good judgment in how he has approached his political career and his amazing success in his campaigns. He also showed good judgment in not supporting the Iraq war back in 2002 and 2003. Wes Clark has been fairly strong here in debunking McCain's experience.

The real disconnect is among voters who oppose the war in Iraq who support McCain--who thinks we should stay in Iraq for another century at least. And an equally big disconnect are those pro-choice on abortion Republicans who back McCain, thinking he is more like them on the subject--when in fact McCain is a consistent in his stance against abortion.

What accounts for the disconnect on abortion and the war? I can't prove it, but I think it has to do with the corporate broadcast media narrative regarding McCain, i.e. that he is a maverick, a moderate and bucks his party's stances. Mostly white folks who rely on corporate broadcast media presentations just fill in the blanks regarding the policy in which they disagree with Republicans and presto! McCain is seen as the anti-war, pro-choice candidate, and there is no need to vote for the half-black guy. Phew, they think to themselves. And again, the polling probably understates the number of folks who are likely to default to McCain in November.

What Republicans understand well, and Democrats still don't get well is that elections are about ONE DAY in November. This year, they just want to stay within 5-7 points of Obama and keep hammering about Obama's lack of experience and let talk radio talk about Obama's far left views--and ignore the fact that Obama is more likely no different than Clinton when it comes to domestic economic policy making (meaning pro-business and "neutral" about workers' interests). Just get to the last few weeks, exploit a gaffe or take an ambiguous statement and invent the gaffe, and swing voters who are mostly white will default to McCain.

Representatives of the Democratic Party have to push hard on two strategies:

(1) Consistently remind pundits on corporate broadcast media regarding the negatives of McCain, including that he's too old and out of touch (the quotes about his selfprofessed ignorance of economic, health, and energy policies) and that, even worse, McCain wants to draft your son to stay in Iraq for 100 years (how else do we stay there after exhausting our current supply of volunteer troops?) and

(2) attack the corporate broadcast media punditry and reporters for their biased pro-McCain coverage. Highlight that, other than his hard stance against women's autonomy, McCain is a pandering flip flopper who can't be trusted.

A bonus strategy would be to somehow build up Barr's credibility that does not cause the broadcast media to suddenly decide, in fairness, to bolster Nader. No matter what people say, Barr will take more votes from McCain than from Obama. Republicans did spread money Nader's way, didn't they, in 2000 and 2004? I don't like that, however, as it strikes me as wrong from a legal and ethical stance. I just think a simple statement by a Democratic Party representative on television that Bob Barr represents the principled Republican position against social spending may do the job, if repeated often enough. Saying that has the virtue of being true and highlights McCain's recklessness and ignorance. As I like to remind Republicans, at least Democrats get the money through taxing rich folks before they spend on investments in people and infrastructure--unlike Republicans who borrow and then spend on stupid wars or boondoggles like ethanol, which got further along under Republicans than Democratic control of Congress.

Sunday night reading

The Boston Review has some mighty interesting articles, even as the Celtics failed to close against my Lakers tonight (giving the Lakers a chance to do the impossible in Boston):

1. A smart, creative mediation on two seemingly different people: Pete Seeger and Bill Buckley. My posts on Buckley, at the time of his recent passing, are here and here. Yes, I was not part of the crowd that memorialized Buckley, and will simply refain from comment on the passing of Tim Russert, who I frankly did not think much of and viewed as one of the people responsible for the degradation of the public policy discourse in this nation.

2. This thoughtful article on why the practice of medicine is exceedingly complex, yet requires snap judgments under countervailing pressures, should be required reading for all doctors--and all Americans. I have experienced doctors who are wonderful and have saved my life, who nonetheless made serious errors that should not have occurred (giving me medications for which I had allergies and in which they were previously informed). I would say this also applies to trial lawyers where the levels of complexity are often beyond one mind reviewing the ins and outs of the myriad of documents in a given case, and where equitable and legal remedies resemble labryrinths more than anything else. We should all, therefore, remember more than ever that our professionals are merely human...

3. Here is an interview with a rational person from Iran which provides some reason for hope that the Iranian people will elect better people (just as we hope to elect better folks in America).

4. And from the LA Times Book Review today, a nice review about one of the great American heroes, Eugene Victor Debs--and the perils of dissenting against a "wartime" president.

5. Finally, Stephen Holmes, in the London Review of Books, provides a respectful review of Naomi Klein's book, "The Shock Doctrine," a book rather poorly reviewed in America, even when it was praised. The reason, I believe, is the lack of a socialist aesthetic among too many reviewers, and a failure to understand that our nation's Founders were not believers in Milton Friedman-type capitalism, but were varying degrees of mercantilists.

Chief Justice Roberts' judicial myopia and his advocacy brief posing as a judicial opinion

Allow me to preliminarily say, since I brought it up in last night's post about the Gitmo decision, that I am, this morning, a depressed Lakers' fan. Since the first game of this year's NBA Finals series, I have had this sinking feeling that the Celtics have the better team--and resemble the 1983 Philadelphia 76ers team that swept the Magic Johnson-Kareem Abdul Jabbar Lakers that year. The 76ers that year were constructed much like the Celtics this year, with the 76ers purchasing the All Star Hall of Famers Moses Malone and Julius Erving (aka Dr. J)--who were then added to their homegrown superstar Maurice Cheeks, plus the admirably dependable Bobby Jones. Last night's Lakers' collapse to the Celtics also shows this particular Laker team (other than Kobe) has no instinct to finish what they start--and really, how angry can even a Laker fan be if Kevin Garnett, Ray Allen and Paul Pierce are now highly likely to earn an NBA championship after all their years of stellar play? For the Lakers to prevail, they will have to dig deep and get more physical in driving the lanes and rebounding. So far, they have not been consistent enough in those areas.

____________


Okay, onto the continuation of my post from last evening concerning Chief Justice Roberts' dissenting opinion in Boumediene v. Bush, and comparing it to the majority opinion. As readers may recall, the question I found most vexing from my initial review of the various opinions in Boumediene v. Bush is this: Does the mechanism set up by the Detainee Treatment Act ("DTA") contain sufficient safeguards to allow the Congress and President to refuse to allow foreign persons any right to seek habeas corpus relief from American courts once the President has ordered such persons detained and imprisoned?

Having now read Roberts' dissent and the majority opinion, I am more convinced by the strength of the majority opinion and frankly find Roberts' dissent has more in common with an advocate's brief than a judicial opinion.

First, Roberts' shows no concern that the Executive has detained people since 2001 with no true access to the courts to have their cases heard. To argue, as he does, that the detainees should have simply waited for and then undergone the alternative process, rather than seek the right to be heard in court through a habeas corpus proceeding is judicially callous, which is to say unjust. It inverts "the innocent until proven guilty" standard that pervades American jurisprudence. To blithely answer that this is a war situation, and these persons detained are foreign combatants, is propaganda because the nature of this war against terrorism is a twlight war where the person initially detained is more akin to an apprehended criminal than a soldier. Al Queda resembles the Mob or a syndicate more than a government last I checked, and Roberts refuses to recognize that reality and is willing to give far too much theoretically oriented deference to the Executive. He also fails to give sufficient recognition to the difference between detainees summarily detained by the Executive branch and a state court defendant who had a trial and is now seeking federal habeas corpus review and relief.

Second, Roberts does make at least a superficially valid point that the regulations promulgated under the DTA provide some of the safeguards the majority opinion states are not present. However, even assuming Roberts' understanding of those safeguards is correct, the question the majority rightly asks is, from the standpoint of (1) the separation of powers among the Executive, Legislative and Judicial branches of government and (2) historically and constitutionally compelling concerns for an individual to seek habeas corpus relief when detained and imprisoned by the Executive, why is the Executive (and Legislative) branch so fired up to bar courts from hearing habeas corpus cases? Further, where is the compelling need to set up a somewhat detailed alternative which, if Roberts is correct, would end up taking just as much time and energy as a habeas proceeding?

As I try to understand where Roberts is coming from, he seems to be concerned with ensuring that classified information can be used in the proceeding that has more secrecy than a public trial. If the alternative proceeding is kept within the Executive branch, implies Roberts, then there is less likelihood of a public airing of classified information that supports the detaining of the individual person.

In answer to Roberts, history reveals that, too often, Executives and their leading officers have an exceedingly broad definition of what constitutes "classified" information, and very often abuse such a designation. And this use of "classified" information, where the defendant does not have access to the information in order to rebut or limit its application, is precisely where the alternative DTA proceeding begins to sound like a Star Chamber. Further support for this proposition is the fact that hearsay rules are essentially eviscerated (This undermines the right of the detainee to confront his/her accuser witnesses) and, no matter what Roberts tries to argue, there is, in fact, a limited judicial review of the entire procedure by the District of Columbia Circuit Court of Appeal--a Circuit Court of Appeal which is notoriously "pro-government" according to many legal experts around the nation.

What I find problematic in Roberts' opinion is that somehow he wants us to believe simultaneously that (a) the alternative proceedings are faster than habeas court proceedings, (b) the alternative proceeding is essentially the same as habeas court proceedings and (c) if the DC Circuit finds the procedure lacking or new exculpatory evidence is produced, the DC Circuit can remand to the alternative tribunal for further proceedings--which would more often undermine (a) in lengthening the time the person is detained and imprisoned.

Roberts' point that I placed in subsection (b) above is also worth discussing in more detail. Roberts argues that the DTA language supports a habeas review because the language in the DTA says the DC Circuit can review the alternative proceeding under the Constitution and laws of the United States. But if that is truly the case, then why is there a fuss at all? It's obvious that the Executive branch does not see it that way, as Roberts is implying the DTA initial trial procedure has essentially the same safeguards as a federal district (trial) court--with the only limits being that the DC Circuit Court of Appeal is the only Federal Court of review in all instances, and has essentially the same scope of review of the DTA trial level procedure as would exist in a review from a district court decision. That, however, does not appear to the intent of the DTA. As the majority opinion itself notes, there are ample statements from Congresspersons and Senators, during the process which led to the DTA being passed, that the point of the DTA was to remove habeas corpus proceedings from judicial scrutiny. This is where I find that Roberts' opinion is more of an advocate's brief than a judicial opinion. He knows that the Executive branch does not want to say what he is implying, but he wants the reader to believe the Executive branch would be amenable to such an implication.

Roberts' then ironically undermines his own dissent:

"How the detainees’ claims will be decided now that the DTA is gone is anybody’s guess. But the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners’ detention with the undoubted need to protect the American people from the terrorist threat—precisely the challenge Congress undertook in drafting the DTA. All that today’s opinion has done is shift responsibility for those sensitive foreign policy and national security decisions from the elected branches to the Federal Judiciary."

If the Court process for habeas corpus is essentially the same as the DTA's alternative process, then it should not be such a terrible thing if detainees have habeas corpus rights. But note the last sentence implicates the classified information argument (i.e. "sensitive foreign policy and national security decisions..."). Again, however, as Defense Secretary Robert Gates admitted today, the disclosures of abuse (not to mention the lies about whether there is torture of prisoners) have undermined the benefit of the doubt the Supreme Court might normally have placed in the hands of this Executive. Just as the US Supreme Court, in Ex Parte Mulligan, reached a decision at odds with Executive branch conduct after the Civil War, so too has the Supreme Court majority recognized that six or seven years have elapsed since 9/11/2001 and the government should be able to prove its cases against the various detainees held in Guantanamo Bay.

One could go on, but a reader interested in the subject may review pages 50-65 of the majority opinion and most of Roberts' dissenting opinion and draw his or her own conclusions. Suffice it to say that I believe the Supreme Court majority has done a service to the Constitution and to protecting our nation from an Executive branch that has not acted with good faith in its undermining of civil liberties. The Executive branch has abused its right, or perhaps privilege, to act without meaningful judicial scrutiny. Furthermore, Congress, in passing the DTA, fell asleep on the job to protect against Executive branch abuse.

Finally, I must say that it is almost not worth commenting on Scalia's dissenting opinion. The opinion is a essentially a political speech that exemplifies hysteria and bias. Scalia takes the minority opinions of right wing Congressmen in Congressional investigations as to what happened with regard to 30 of the hundreds of detainees as evidence that our Executive and Legislative branches should be allowed to set aside something as fundamental as habeas corpus. Scalia has no problem inverting "innocent until proven guilty" and using the word "war" in such an openended and frankly postmodern manner that Jacques Derrida might have blushed in this instance.

Personally, I cannot imagine Scalia upholding the DTA if it was approved by President Obama or President Hillary Clinton--as Scalia's political biases have already been shown in how he decided Bush v. Gore, his rulings against minority religions in free exercise cases, and his non-Originialist and non-textural reasoning in the state sovereignty opinions in the late 1990s and early part of this decade.

This latest decision of the Supreme Court was courageous, although if there is another attack on our soil by terrorists, one can already imagine that the supporters of the Cheney (Bush) administration will blame the "liberal" Supreme Court for undermining our nation's security...

(Edited; on June 23, 2008, I re-edited, for clarity, one paragraph above, which concerns Roberts' understanding of the DTA compared to the Executive and Legislative Branches' own views concerning the DTA)

Supreme Court thumbs nose at bedwetting warmongers (again)

I have only skimmed the majority and concurring, and dissenting opinions. My son graduated from middle school today, and it's been largely family day. Also, the Lakers-Celtics game just started and...you know, priorities...

Here are my first thoughts on the majority and other opinions:

The case of Boumediene v. Bush is a 5-4 decision, with Kennedy writing the majority opinion, joined in by Stevens, Souter, Ginsburg and Breyer.

Give the majority of five at the Supreme Court some credit. They understand that the twilight nature of the war against terrorism and the abuses committed by the Cheney (Bush) administration, including torture and rendition to other nations for torture, require a stricter review of actions that the Cheney (Bush) administration takes and even the now deceased Republican Congress in 2005 had taken.

Essentially, the majority held that Guantanamo Bay is technically or legally owned by Cuba, not the USA. However, the USA has had exclusive control of the Bay for over 100 years. Therefore, the Court majority rejected the Cheney (Bush) administration argument that the Bay was not subject to US jurisdiction for purposes of applying the Constitution. The majority is correct because, to stand on such a slender legal technicality when reviewing a prisoner's claims, is horribly unjust. The Court majority also held that the Congress and President have no right to formally suspend habeas corpus except under the "Suspension Clause" of the Constitution.

The majority also decided the attempt by the Republican Congress and Cheney (Bush) to remove the right of the courts to hear habeas corpus petitions is unconstitutional under the circumstances and that the alternative proposed in the legislation Cheney (Bush) approved of was insufficient.

I want to study Chief Justice Roberts' dissenting opinion and compare it to the majority opinion as to this last point regarding the legislation's alternative as that might, for me, have the most salience as to whether I ultimately agree with the majority.

From a gut level, the majority's point, nicely summarized by Justice Souter's concurring opinion, is that too many of the prisoners at the Bay have been held without trial and hardly any outside communication for almost six years. That is unprecedented in American history. In my view, the situation begins to resemble the situation faced by Rudolf Hess in Europe, which many, if not most Americans found repulsive even for a Nazi.

Also, I am not sure the Court really grapples with the larger political issue, which is how the Cheney (Bush) administration and their congressional allies want to fight a war they must recognize is not a formalistic, direct war like the Civil War, World War I, World War II, or even the Vietnam War--and yes, even the geographic limitations of the Iraq War. Yet, the administration wants to have all the power Lincoln and other direct formal war presidents had. As the Court majority recognizes, this is an invitation to open ended power without end, which means it would be easily abused.

Enough for now. I'll try to provide a deeper analysis, particularly as to Roberts' points, later.

(Edited)

So you wanna vote Republican again?

Two friends sent this video to me today. All you have to do is click and watch...

Articles of note from The Weekly Jewish Newspaper, the Forward

From the Jewish weekly newspaper, The Forward, published in New York:

1. Respected military analyst, Martin Van Creveld, states the Israelis should give up the Golan Heights to Syria in exchange for peace with Syria. He makes the best case I've read, but somehow, even I am wincing a bit on that. Better to make peace with Palestinians is how I've long seen things.

2. "Does Obama really have a Jewish problem?" Not according to this article. However, an editorial from the same issue of The Forward says that a Democratic candidate receiving 65% or less of the Jewish vote has lost in 1952 (Stevenson), 1972 (McGovern) and 1988 (Dukakis). Obama currently has 61% Jewish support, per the first article, though that does not include Jews who voted for Clinton who will in fact vote for Obama. Also, the number of Jews relative to the population of our nation has declined fairly significantly, but one wonders about states such as Florida and Ohio, and possibly New Jersey this fall.

3. Here is another editorial on the raid on the Kosher meat plant in Iowa where there were found significant violations of not merely immigration laws, but employment, health and safety laws. Kosher food is often seen as being answerable to "a higher authority," as the ad for the leading retailer of Kosher food says. At the processing plant in Iowa, where much of the nation's Kosher meat plant is processed, there was little authority that was not violated. As my synagogue's spiritual leader stated in a sermon this past weekend, this raid represented a significant failure for the Jewish community because it took the government to step in to change the conduct of the plant owners. I also note that the Catholic Church has provided the most help to the undocumented workers after the raid--and I wondered where were the Pottsville, Iowa Jewish temples and synagogues with reference to helping these workers?

(Edited)

Hate Clinton for adultery? Meet John McCain...

This article, from the British newspaper, the Daily Mail, manages to find things US corporate broadcast media has not managed to find. One can bet if Obama had this kind of history with women, we'd be hearing all about it in excrutiating detail.

Still, I have little use for this sort of airing of personal private lives. I just wonder how come people disposed to attack Bill Clinton for adultery can stand to vote for John McCain.

The most important article you may read this year

Kevin Drum directs us, in this post, to an article in this month's Atlantic magazine by Hannah Rosin. It is about the correlation between providing housing vouchers to poor people in inner cities to move to the suburbs, and the rise in crime in those suburbs.

The points raised in the article contain the same elements of where and how the Great Society programs failed. Somehow, there is this belief on the part of some liberals, and now some conservatives, that if we just give money or vouchers to poor people, the cultural habits that keep people in poverty will be overcome, and more important, the poor folks' lack of access to decent paying jobs, due to their lack of job skills and job training, will also somehow be overcome. In the 1990s, and in this decade, vouchers were the Republican Party and Clintonized Democratic Party version of the 1960s Great Society programs. Rosin's article helps us understand the limits of the housing voucher policy, and its unintended effect of increasing crime in suburban settings.

I wish people would read Michael Harrington's critique of the Great Society programs, a critique shared by the greatest sociologist of the past forty years, Christopher Jencks. It is a critique, interestingly enough, understood by Bobby Kennedy in 1968 when he infamously told Gene McCarthy in a California debate that moving black folks from Watts to Orange County was not an effective answer to allieviate the black folks' poverty. While even Bobby's friends and supporters were of the view that Bobby was race-baiting Gene McCarthy, I have long viewed that attack on Bobby's statement as unfair. Instead, Bobby was talking in the context of his Bedford-Stuyvesant proposed program, which was a government initiative to directly help people in blighted areas with jobs and job training, and refurbishing buildings, and housing. Think of it as gentrification of both the people in the community and the buildings they live in and would work in. That sort of initiative is what Harrington and Jencks consistently talked about as a more effective way to overcome most problems associated with economic poverty.

The attack on Harrington, Jencks and even Bobby Kennedy is that such an activist governmental program is "socialistic," as if saying the word "socialistic" constitutes a well-reasoned argument. What people should take away from Rosin's article is not the failure of the housing voucher program, but its limits. In reading the article, it is important to note the success stories from the housing voucher program, too. The optimal understanding one should take away from Rosin's article is that there are ways to overcome poverty beyond giving people money or vouchers. One of those ways is through job creation, job training and refurbishing homes and buildings in blighted areas.

In corporate broadcast media, the attack on the Great Society programs almost always came from the Right. "You can't throw money at problems." "Socialism always fails." and so on. The critique from Harrington and Jencks (and also the other greatest sociologist, William Julius Wilson) never got past the New York Review of Books or the New York Times Book Review page.

Further reading on these subjects that would be salutary to improving our public policy discourse would include:

1. Christopher Jencks, "Rethinking Social Policy: Race, Poverty & The Underclass" (Harvard 1992);

2. William Julis Wilson, "When Work Disappears: The World of the New Urban Poor" (Vintage, 1997);

3. And for a liberal, left defense of the Great Society programs, see "America's Hidden Success" by John Schwarz (WW Norton, 1987, rev. ed.).

For Harrington's critique of the Great Society programs, one may wish to review "Toward a Democratic Left: A Radical Program for a New Majority" (Pelican, 1969) and Jencks' book he wrote with other sociologists, "Inequality: A Reassement of the Effect of Family and Schooling in America" (Harper & Row, 1973, paperback edition) (Caveat: In the beginning of "Inequality," the authors tell us I am wrong, too, in believing in the solutions I propose. However, as the book goes on, and particularly at the end of the book, they make clear these policy prescriptions are important policies to pursue. It is somewhat contradictory, more a paradox, but they are trying to tell us to watch for cultural issues while tending to the economic ones.).

As we move forward toward what I hope is a revitalization of New Deal values, we may once again begin to address nation rebuilding, not merely in poor innercity neighborhoods, but pursuing redevelopment throughout our nation, including states emptied out of people from argicultural mechanization, and rebuilding and redesigning our infrastructure of roads, bridges, mass transit, etc. With these initiatives, we will see great econmic improvement, a cultural rebirth of a patriotism that is genuine and ennobling, and we will again become a good example the rest of the world will wish to emulate in more peaceful and humane ways.

Wow. I just finished what I thought would be a low note on a high note instead...Nice!

(Edited)

Libertarians argue about global warming policies

This was a fun transcript to read from Reason magazine. Reason's science writer, Ronald Bailey, has become a very rational and effective advocate for policies designed to offset human contribution to climate change. It is fun to read his frustration with the perpetually petulant and adolescent comments from Fred Smith, who hails from the private foundational equivalent of the Ministry of Silly Walks known as the Competitive Enterprise Institute.

Bailey calls for a carbon tax and recognizes that government regulation of some sort is necessary if we are to take action as a nation and globally to avoid consequences that will likely arise with carbon discharges coming from the US, China and India, to name three large civilizations on the planet. I wish he'd come around to supporting a public policy of having government directly promote alternative fuel sources and purusing mass transit to limit autos and truck usaage--and to help create trust with the Chinese and Indian governments to pursue the same. One step at a time, I guess...

(Edited)

ADDENDUM BONUS POINT: Bailey rips into Ben Stein and the pro-creationist film, Expelled. If this keeps up, Bailey may end up writing for Mother Jones or The Nation...

J.K. Rowling on the Benefits of Failure--and Imagination

J.K. Rowling has delivered a wonderful commencement address at Harvard. Her respect for Harvard overflows, and the message she delivers should be understood in the context of a society, England, that is far kinder to the poor than our nation. Had she been in America, her ability to be a working (and sometimes not working) single mother, and still write her first Harry Potter novel would have been far more limited. Now, she is monetarily richer than the Queen--and she pointedly refuses to leave England for the lower-tax rates of America.

The reason I am so harsh on so many economists is that people have different and varied motivations, and not simply a motivation for more and more money. People are not really that "rational" and we should all be glad to that extent. An undying grasping of more and more money is an illness that can create just as much misery and injustice--particularly when it buys government power to oppress and destroy entire communities and nations.

Turning tables on ambush journalism...

This is an amusing post and footage from CrooksandLiars.com where Bill Moyers and another "journalist" turn the tables on a FoxNews Bill O'Reilly "reporter."

My personal take is that this is a form of journalism--it is, however, bad journalism as the story is more about the reporter and personal attacks than anything substantive. The ambush interview has been around for at least 100 years. The famous early 20th Century journalist, George Seldes, tells the story about how, as a young reporter, his editor asked him to go see William Jennings Bryan make a speech and get an interview afterwards. The editor told Seldes to specifically and primarily ask Bryan when he'd run for president again. The editor knew Bryan would react strongly and perhaps violently against Seldes--which Bryan did. The editor had his story, that the reporter was attacked by a "crazy" (my quotes, not Seldes' or the editor's) Bryan.

Note also the battle between Moyers and the O'Reilly employee primarily concerns who will appear on whose show first. Moyers knows O'Reilly edits his shows, as does Moyers. However, in the unedited video linked to at the beginning of this post states, Moyers says he will not edit O'Reilly's appearance on Moyer's show. If O'Reilly says all he wants to do is talk with Moyers, then an unedited show should be sufficient for O'Reilly, shouldn't it? O'Reilly, in my opinion, is now trapped, as he has already done the dual appearance with Stephen Colbert. Why not appear on Moyers' show, who O'Reilly has attacked?

In fairness to O'Reilly, in an earlier ambush interview O'Reilly's show did with Moyers, Moyers did try to deny statements he made concerning O'Reilly that Moyers in fact made. What is strange to me is why Moyers would deny making statements that are utterly uncontroversial as far as millions of Americans are concerned. O'Reilly does spew venomous words against those with whom he disagrees. O'Reilly is also reasonably seen as being part of a slime machine, particularly against Democrats and people seen as "liberal."

I think it would be good ratings for both Moyers and O'Reilly to face each other. Let's see if O'Reilly rises to Moyers' challenge.

Great radio website: Slacker!

Slacker, Inc. is an outstanding website. Combining elements of internet radio, with the ability to buy a product that is like a cross between an iPod and a Kindle, it provides a wide range of music. My son is already going, "Please buy it for me, Dad. I really want one!" Being a bit careful with money these days, I told him to wait till his birthday later this year.

Anyway, my son and I have really enjoyed listening to the Slacker radio station that plays progressive rock. Slacker is playing amazing progressive rock bands, including those I have not heard in years--or never heard before at all. We are definitely rocking out at night listening to the station. Right now, they are playing my personal fave prog rock band, Gentle Giant. Right on!

When I googled the founders of Slacker, I learned they live in my current home town of Poway, California, which was a nice surprise. I wonder if the founders like prog rock, although they do have a variety of genres at the station from which one may choose...The wildest thing is I learned they are looking for a corporate counsel, and of course I applied (not much chance of getting interviewed, though, I think...).

Still, I love Slacker. Rock on!

Harold Meyerson reflects on 1968 and 2008

One of my favorite print pundits, Harold Meyerson, discusses the dynamics of 1968 and 2008 and how the Democrats have a chance to finish what was started under RFK in 1968.

From reading Harold's article, I see that he believes, as I said yesterday, that Bobby would have won the Democratic Party's nomination in 1968 had he lived.

Bush's legacy as a dupe of the Iranians

Last week, I had an argument in Los Angeles with an Israeli woman who told me that she thought George "Dubya" Bush was the greatest president in the last 50 years because his policies will lead to a "liberated" Middle East.

I disagreed and said that his invasion of Iraq messed up the Middle East, and that if the Middle East does get more enlightened 20 years from now, it will have to do with other events, not the US led invasion of Iraq in 2003. More important, I told her that one can make the argument that Bush and the Cheney-Bush administration were agents of influence for Iran. She gasped as I explained that, when we think about it, the US had the opportunity to stay in Afghanistan and the borders of Pakistan to complete the job of bringing bin Laden to justice (or killing him in a direct attack if we found and fought his forces directly), and to use our then world sympathy to diplomatically slow down the Iranian movement to develop a nuclear bomb.

Instead, using the largely false information coming from the accused Iranian double agent, Chalabi, and others, such as Curveball, the Cheney-Bush administration ignored the Iranian bomb threat and overthrew the one leader whom the Iranians feared: Saddam Hussein. Also, I said that if there was anyone who wanted to defeat bin Laden in the Middle East, it was Saddam Hussein. Just as short term needs required the US to side with Stalin against Hitler, a smarter policy for America and the world would have been to stay the course against bin Laden and worked with the rest of the world, including Saddam Hussein to go after Al Queda and, simultaneously, work to quell Iranian nuclear ambitions.

She was predictably speechless, but the person who was standing next to me said, "Wow, that is great. I never quite saw that before. Bush IS an Iranian agent."

So now, via Atrios, I see this report from the McClatchy news service today entitled "Did Iranian agents dupe Pentagon officials?" Yup, they did. And this article helps even the most hardened FoxNews watcher to start wondering the same thing--if FoxNews covered the story...

And of course, this also means that John McCain is an Iranian dupe, too--in addition to his rank ignorance about Al Queda, Iraqi Sunnis and Iranian and Iraqi Shias. As Bill Maher recently said, "John McCain is not tougher about the war, he's dumber about the war." Yup again. Dumber.

If Bobby Lived...

As we contemplate the improbable rise of Obama, and our hope for his victory in the fall, and as we commemorate the 40th Anniversary of the assassination of Robert Kennedy this week, I offer what I hope is a decent summary of why I continue to believe Robert F. Kennedy, aka Bobby Kennedy, would have also won had he not been assassinated. Perhaps Obama's victory may reinvigorate RFK's spirit and the reformation of a new New Deal coalition to rebuild and improve our nation.

In the first minutes after midnight on June 5, 1968, Robert Kennedy was shot while walking through the kitchen of the Ambassador Hotel in Los Angeles. Moments before, he had completed a victory speech following his primary election victories in California and South Dakota. By June 5, 1968, Kennedy had won four of the five primary elections he had entered since announcing his candidacy for president in March 1968--at a time when delegates were largely chosen in caucuses and meetings, not primary elections. The only primary election left after June 5 was the New York State primary set for June 18, 1968. Kennedy was expected to convincingly win the New York primary, the State Kennedy had been serving as Senator since 1965.

The question haunting many Americans 40 years later is: If Kennedy lived, would he have won the Democratic Party's nomination for president? Some historians, starting with Ronald Steel, believe that, because Vice President Hubert Humphrey was more than 400 delegates ahead of Kennedy, and only needed 300 more delegates to win the nomination, Humphrey would have won the nomination even if Kennedy survived. (NOTE: Links are to book sources for factual back-up). But there is good reason to believe Kennedy had already gained strong momentum by June 5 of that tumultuous year of 1968, and that, by then, Kennedy had become the only candidate who could unite the New Deal coalition that was coming apart at the seams over the Vietnam War, the militancy rising within the civil rights movement, the gap in outlook between the generations, and the nascent women's movement.

As noted above, there were relatively few primary elections in 1968, and the vast majority of delegates were akin to superdelegates who could change their minds up through the convention. Political insiders such as Chicago Mayor Richard Daley wielded far more power to make or break a candidate than today. After the California primary, Daley was just getting ready to endorse Kennedy, as he had waited throughout the spring to see if Kennedy could build nationwide support. While Daley was viewed as a "conservative" Democrat, Daley was far more complicated than that label. For example, Daley was strongly in favor of ending the Vietnam War, which put Daley to the "left" of most establishment Humphrey supporters. Daley also supported most of the Great Society programs of President Lyndon Johnson. Daley had no use for Humphrey and strongly disliked Senator Eugene McCarthy (D-MN), Kennedy's two main challengers.

Separate from Daley, Kennedy had growing support from many in the 1960s student movement, including Tom Hayden, who, like Daley and Kennedy, was of Irish heritage and a strong believer in the Kennedy mystique. Whether Daley personally hated the student radical Hayden is less important than that both wanted to see Kennedy elected. Successful political campaigns often depend upon such strange bedfellows of insiders and younger voters willing to walk precincts, lick envelopes, and fill out rallies. Both Daley and Hayden ended up sitting in different sections of St. Patrick's Cathedral when Bobby Kennedy was being laid to rest. They would have been glad to sit in different sections of the inauguration podium had Kennedy lived.

Humphrey, after Kennedy was killed, stalled in his candidacy throughout June and July 1968. In the days leading up to the late August 1968 Democratic convention, Mayor Daley was desperately trying to convince Ted Kennedy to accept a draft nomination. Daley, speaking for other insiders, was not impressed with Humphrey's drive to win a national campaign. Humphrey had only hesitantly entered the race for the nomination at the end of April 1968--almost a full month after President Lyndon Johnson's shocking announcement on March 31, 1968 that he would not seek re-election. When Humphrey was told, a few hours before Johnson's dramatic public announcement, that he needed to run for president to replace Johnson, Humphrey responded, "There's no way I can beat the Kennedys." By the time Humphrey announced, it was too late for Humphrey to enter and run in any primary elections. In fact, Humphrey's lack of desire to run against Kennedy continued later into the campaign, when, a few days before the California primary, Humphrey told one of his top aides, Ted Van Dyk, that he hoped Bobby would win "decisively" against McCarthy. Humphrey also told Van Dyk that he and Kennedy held the same views about most public policy issues, and said he genuinely liked Kennedy. Publicly, Humphrey voiced doubts about his own candidacy in late May 1968, telling a local broadcast journalist that if Johnson had reconsidered his decision, Humphrey would gladly step aside. Humphrey would also have likely stepped aside rather than have a fight against Kennedy at the convention. For unlike Humphrey, Kennedy had already said to his aides on the night of June 4 that he was prepared to chase his opponent's "ass" around the country to secure delegates.

Senator McCarthy, too erudite and detached, and prone to statements we'd call gaffes today, also failed to secure the support of many Kennedy supporters after Kennedy's death. McCarthy then completely imploded at the beginning of the Democratic Party's convention when he declared it was not a big deal that Russian tanks had invaded Czechoslovakia to overturn the pro-democracy movement in that nation. Worse, from a domestic political perspective, McCarthy released a list of people for his prospective Cabinet that included mostly non-Democrats and establishment "conservatives." McCarthy had ceased being a realistic challenger to Kennedy by the time the polls closed in California on June 4, 1968. Kennedy knew that, and that's why he focused with his aides on Mayor Daley and Humphrey--not McCarthy. McCarthy was a like a badly leaking ship, and nobody really had a chance to immediately notice once Kennedy was killed.

In 1968, television and radio pundits and reporters had become a factor in establishing a narrative that people followed. These pundits and reporters were, at the time, treating the primaries as far more meaningful than caucus meetings of potential delegates. This narrative helped Kennedy create the perception that he was the "leading" candidate for the nomination. Kennedy's campaign speeches were also broadcast-media-friendly in focusing on the theme of uniting the nation, and telling Americans he was strong enough to help heal America's self-inflicted wounds of race riots and a failing foreign war. Kennedy had made significant inroads as a uniter among media pundits, who carried much weight back then--despite a 1967 poll which showed Kennedy to be more of a divisive than uniting political figure. Kennedy's April 4, 1968 speech in Indianapolis, where he informed a largely African-American audience that Martin Luther King, Jr. had been assassinated, and his last speech in Los Angeles (which Jeremy Larner, Gene McCarthy's leading speechwriter, said was Kennedy's best speech of the campaign) were both about unity, building confidence in ourselves as a society, and moving forward with strength to overcome the economic and cultural challenges facing the nation. Therefore, if Robert Kennedy lived, there is clearly good reason to conclude he would have won the Democratic Party's nomination in 1968.

The other question people ask is who would Bobby have chosen for Vice President? In the 1950s and 1960s, Vice Presidential candidates were mostly those who had served, at one time or another, as Senators. The Democratic Party Senators not running for re-election in 1968, who most fit the regional balancing goal both political parties had sought in 1968, were U.S. Senators Ralph Yarborough (Texas), Vance Hartke (Indiana) and George Smathers (Florida). Yarborough had somewhat quietly, though firmly endorsed Kennedy, and Smathers and Hartke were long-time Kennedy friends. The best bet would have been Yarborough because Texas' electoral college votes were equal to several Southern states. Plus, Yarborough's fearless embrace of economic populism would most effectively offset the strength of the third party candidacy of former Alabama governor, George Wallace, who cornered the market that year for appeals to white racism and cultural populism. Peter Edelman, a close Kennedy advisor, once told me "I hope we were really that smart" to pick Yarborough, simply because nobody in the campaign had any idea who Bobby was thinking about for Vice President.

So Kennedy defeats Nixon and Wallace, right? Well, maybe. Kennedy was likely to win most states in the Northeast, and there were still lots of union members in the Midwest who would follow their leaders' exhortations to vote for the Kennedy-Yarborough ticket. Also, in the far West, we know Humphrey almost defeated Nixon in Nixon's home state of California, won in Washington State, and lost to Nixon by only five and a half points in Oregon. A strong Kennedy campaign would likely have resulted in Kennedy prevailing in California and Washington, though perhaps not Oregon. People also forget that Humphrey won Texas, even with his Vice President nominee being Senator Ed Muskie from Maine. With Yarborough barnstorming through Texas and a few other States in the South, Kennedy-Yarborough may well have won in Texas, despite white Texans' antipathy toward Bobby Kennedy.

If Kennedy won the presidency, we'd probably have a very different America, and a different world, assuming Kennedy and Yarborough were able to hold together most of the New Deal coalition. Under their leadership and programs, we'd likely be living in an America with a better distribution of its wealth, a more robust community without the constant budget cuts in education and other human services, and a far deeper commitment to public service. If Kennedy's Bedford-Stuyvesant program of urban re-development went nationwide, America would be a far more hospitable place for less fortunate African-Americans and Latinos--and one questions whether the violent despair of rap "music" would have reached so deeply into American culture, to take a far reaching example. When we look at campaign photographs taken in poor communities where Kennedy visited, we see a profound faith that has never been fully replicated, even with Senator Obama's amazing rise to national prominence.

Kennedy's legacy of courage, hope and passion for his nation remains compelling and can be grasped once again by America--if it exercises its political will through leaders bold enough to embrace Kennedy's best values, starting with ending an unpopular foreign war and helping those most economically vulnerable in our society. If our leaders embrace those values, then Bobby Kennedy will have finally and truly won the election he began in 1968.

(Edited)

Obama talks well to extremist Zionist lobbying group

Obama spoke very well to the notorious and more hawkish than Jewish American-Israeli Public Affairs Committee (AIPAC).

Read the transcript of the speech (the video will probably be up a few hours from posting this) here. Apart from Obama saying he won't talk to Hamas until it renounces terrorism per se and recognizes Israel per se, I have no real disagreement with his policy statements. It is a strong and well stated speech which is consistent with who Obama has been and is. It makes clearer than a bright, sunny day that Obama is a friend to Israel and would never undermine Israel's security. Obama, however, was courageous in making the following point to the AIPAC audience about Iran and the Bush/McCain foreign policy, which point bears highlighting:

"But just as we are clear-eyed about the threat (from Iran), we must be clear about the failure of today’s policy. We knew, in 2002, that Iran supported terrorism. We knew Iran had an illicit nuclear program. We knew Iran posed a grave threat to Israel. But instead of pursuing a strategy to address this threat, we ignored it and instead invaded and occupied Iraq. When I opposed the war, I warned that it would fan the flames of extremism in the Middle East. That is precisely what happened in Iran – the hardliners tightened their grip, and Mahmoud Ahmadinejad was elected President in 2005. And the United States and Israel are less secure.

"I respect Senator McCain, and look forward to a substantive debate with him these next five months. But on this point, we have differed, and we will differ. Senator McCain refuses to understand or acknowledge the failure of the policy that he would continue. He criticizes my willingness to use strong diplomacy, but offers only an alternate reality – one where the war in Iraq has somehow put Iran on its heels. The truth is the opposite. Iran has strengthened its position. Iran is now enriching uranium, and has reportedly stockpiled 150 kilos of low enriched uranium. Its support for terrorism and threats toward Israel have increased. Those are the facts, they cannot be denied, and I refuse to continue a policy that has made the United States
and Israel less secure.

"Senator McCain offers a false choice: stay the course in Iraq, or cede the region to Iran. I reject this logic because there is a better way. Keeping all of our troops tied down indefinitely in Iraq is not the way to weaken Iran–it is precisely what has strengthened it. It is a policy for staying, not a plan for victory. I have proposed a responsible, phased redeployment of our troops from Iraq. We will get out as carefully as we were careless getting in. We will finally pressure Iraq’s leaders to take meaningful responsibility for their own future."

After Obama's speech today, one hopes the scurrilous and defamatory matter about Obama that has been circulated via mass emails, particularly among American Jews, may finally begin to be directly challenged now that he is being treated as the Democratic Party nominee for president.

On another note, I took our family Honda sedan in for maintenance this morning. On the way there, I noted the nearby Chrysler dealer (our other vehicle is a Chrysler) had closed down this week without notice. My folks just told me that another Chrysler dealer in their area in south Orange County has closed, and a Buick dealer nearby their home is closing his doors in the next few weeks (The Buick dealer is down to selling Mazdas only and will close the entire business by month's end). As gas prices keep moving up and up, more and more Americans may finally tire of the rhetoric of modern Republicans and conservatives about how bad government is, and why you can't rely on anyone but yourself. Perhaps more than enough Americans will vote for Obama and not let the broadcast media machine infect their ability to see that he is the far better choice than McCain.

(Edited)