Brennan Center for Justice

Filibusted! A Conversation With Greg Koger

2010-08-10T09:55:34+00:00

**Greg Koger, the author of Filibustering: A Political History of Obstruction in the House and Senate, talks to Just Books' Mimi Marziani about the filibuster -- and its use and misssue.**

Mimi Marziani: In recent years, use of the filibuster has exploded – and sparked a vigorous public debate. How does your book contribute to the discussion on the filibuster?

Greg Koger: A major contribution is my study of both chambers of Congress during the 19th century. The House actually had much more obstruction than the Senate during the 19th century. It goes through the cycle of growing filibustering, and then by the end of the 19th century, the House is eventually paralyzed by filibustering -- the way many people complain about the Senate now. Since a lot of rhetoric about filibustering is based on loose historical claims, its aim is to nail down the history of filibustering.

And I offer a description of the emergence of the modern Senate. Neither of the previous books on the topic explains how we get from the Senate of the 1900s to the Senate of 2010. So, that is one of the main academic contributions -- telling the story of the Senate transition.

We’re at a time in the Senate in which people respond to the number of filibusters; historically this has not had any effect on the filibusters and may have facilitated filibusters by making them easier.

MM: As you know, the term ‘filibuster’ is broad and refers to almost any tactic strategically employed to obstruct legislative action. As a result, its hard to measure filibusters in an objective way. How did you choose to measure filibusters and why?

GK: For the historic Senate, I didn’t have very high-quality secondary sources, so I looked for first-hand evidence that filibustering was going on. And on top of that, I had a strong idea, based that most of the filibustering that was going on included tactics that were easily measureable in the Congressional Roll Call record. That is, calling for votes on procedural questions just to chew up time. The disappearing quorum is another useful, measurable, tactic. It is when legislators refuse to vote as a strategy to break a quorum, to prove that there aren’t enough people there to make a decision. Then that brings the chamber to a halt. These are things that I looked for in the Roll Call record, in the House and Senate. That was my strategy for the 19th Century.

In the 20th Century, filibustering in the House had been clamped down. And Senators became more inclined to use speaking, rather than dilatory methods and disappearing quorum, as their method of choice.

I literally went through The New York Times database and looked for articles that had the words ‘Senate’ and ‘filibuster’ in them. I supplemented that by going through the Times magazine online database and some Congressional Quarterly publications, as well, looking for the word ‘filibuster’. I was using over 7,000 articles with the word ‘filibuster’ in it from the 20th- and 21st centuries.

MM: NYU Law professor, Rick Pildes, says today’s homogenous, hyper-polarized parties can’t be compared to the parties that existed before the 1964 Civil Rights Act. Pildes believes that today’s polarization is much more extreme and he believes that it is directly linked to the increase in filibusters and other types of obstruction. How do you respond to that?

GK: Polarization was high at the beginning of the 20th century. This is not just my impression. I am relying on conventional measurements of partisanship used in political science research for years, particularly party unity in Congress – that is, the extent to which party members in Congress vote together.

Keith Poole and Howard Rosenthal created a new measure that’s gotten a lot of recent attention. Their polarization scores are based on complex algorithms by which they attempt to determine the ideology of the members of Congress. Sure enough, if you look at the last forty years, you see a growing polarization in Congress. But if you go back historically, you see that at the turn of the century—the end of the 19th century, early of the 20th century—was also a peak time of polarization. These are conventional measures. And they coincide with what a lot of historians and political scientists who study party history know about parties at the end of the 19th century, eginning of the 20th. Namely that they dominated the function of Congress, that a lot of the fighting and conflicts that go on within Congress between party leaders and the mass public, parties were highly hyper-developed. Every person felt obliged to declare loyalty to one party or the other; they completely controlled nominations.

It is true that if you compare the parties of 1963 to the parties of 2010, things look a lot more polarized. Ultimately the question is: If I use data from the early 20th Century, what does that tell us about filibustering? And what it tells us is that there is no single link—no causal link—between partisanship per se and filibustering.

Meanwhile, if, for other reasons, there is an increase in filibustering over time—and I identify those other reasons—it makes sense that as the Senate becomes more polarized, that filibusters are more likely to fall between party lines rather than to pitch regions against each other. This is what we saw when the Southerners filibustered against the rest of the country on civil rights. Also, at that time you saw much more ideological filibusters where there would be a small group of Democrats or Republicans who are fighting together against the rest of the Chamber—you see fewer of those now-a-days. It is mostly about one party, usually a minority party, not liking what another party is doing. Those conflicts between parties are not new to Congress. What is a new development in the Senate, historically speaking, is that it is relatively easier for a minority party to exercise this opportunity to filibuster.

MM: When you have a minority party that acts in lock-step, the filibuster can become a more powerful weapon. It can be more powerful in a way that a minority veto could not have been when you had maybe more factions.

GK: Right. One thing that may have changed, in addition, is that during the ‘70s and ‘80s it was probably easier for the majority party to buy off, or bring in, some segment of the minority party, and then to filibuster. Polarization, perhaps, has more of an effect on the Senate because it is harder to get the votes to end the filibuster.

MM: In your view, the scarcity of floor time in today’s Senate is connected to filibustering. Could you explain that?

GK: Senators are more likely to filibuster if the costs of doing so are low—that’s a simple idea, right? So, start with the idea that Senators are more likely to filibuster if it is easy to do so. And so, as costs decrease, we will observe more filibustering.

So, the big change in costs is a change in tactics used by the majority of the Senate against the filibuster. It used to be that the tactic of choice was attrition—just wait it out, if someone wants to delay a bill, just sit down and watch them speak -- which is sort of nicely illustrated in the movie Mr. Smith Goes to Washington. The one Senator with the small team will get exhausted and collapse, and the other team will win.

And so, in that old-style type battle, you would only see the minority winning if time was especially precious. Or, when there was a very large group of people working together to delay things. This is why Southerners were very effective. There were, say, 20 of them in a civil rights fight and they were very well organized and willing to stand and speak day after day.

Once Senators stopped waging these old-style attrition battles, they significantly decreased the costs of a filibuster. Somebody who is thinking of filibustering no longer has to say to him or herself, ‘do I really want to be on the Senate floor day after day?’; ‘do I really want to take a public stand against this bill which may be popular?’ Take that out of the equation and, you know, it seems a lot easier—lower cost—to filibuster.

MM: And you remove uncertainty, correct?

GK: Yes. In one sense, that uncertainty is reduced in that it is easier to count the votes than it is to count intensity. So if a Senator says, ‘I am going to filibuster against that bill,’ that’s one thing. That’s a unit that you can easily measure, you can count heads, and then have a good idea of whether the bill will pass or not. But if somebody says they are going to stand on the floor and speak against the bill, you don’t really know how intense they are until they actually do it. So, a lot of times when these old school fights play out, there is a lot of uncertainty at the outset about just how serious the other side is.

Now, I am not the only person to have gotten this far, to have said that there has been this tactical shift by Senate majorities, and that it’s easier to filibuster, and that’s why we have more filibusters. The next point is where the book ends up—trying to explain why this tactical shift occurred in the first place. And to go that extra step, you have to think about the value of time for Senators. To wage a war of attrition costs everybody time. Obviously the obstructionist has to be on the floor speaking. So, everybody that is fighting against that filibuster has to be in and around the Chamber. And so, in one of these old school fights—if you watched Mr. Smith Goes to Washington—Mr. Smith is filibustering, but then a majority of the Senate also has to be there all night while he filibusters because Mr. Smith has the ability, in the absence of a quorum, and then everybody sort of has to show up on the floor and say, ‘yes, we’re here,’ if it ever happens.

Well, that’s quite a burden for the people who are fighting the filibuster. And the more often that they occur, and the more valuable the other uses of their time, and the harder it is to actually wage one of these wars of attrition, and so the book gets into the increasing value of their time. So, while I don’t measure this directly -- things that are going on in the 20th century include an increase in the Senate’s workload; the federal government is growing; you have wars to manage. And so, there are other things waiting to come up on the Senate floor. But also, essentially, they have more things they can do with their time. D.C. has become a more livable place. They could be going out and seeing a show. Or, they could stay in the Senate Chamber all night. They could be catching a plane and going back to their home state, visiting with their constituents. Or, they could be leaving the city altogether to speak to party activists for the campaign they hope to wage someday. So, they have other things to do with their time. Their options got a lot better, and the pressures of other topics waiting to come up on the Senate floor increases. It becomes less feasible for them to wage a war of attrition every time some Senator is unhappy with what is going on.

MM: Do you think there is any connection between the campaign finance rules that govern the Senate and the scarcity of floor time?

GK: Yes, I think so. In two ways. Firstly, a lot of a Senator’s time seems to be consumed by fundraising. That makes it harder for them to keep up with their legislative duties, much less wait out a filibuster on the Senate floor. Secondly, the fact that Senators must be responsive to potential donors makes it difficult to compromise when there is a filibuster happening on the Senate floor. This is part of a broader pattern in American politics. The activist and the donor play a large role in who gets nominated, and who gets money to wage a real campaign in American politics. As a result, it is harder to compromise.

MM: Do you think that campaign financing along the lines of public funding would, or could, lead to a decrease in filibusters?

GK: It is possible. If I were trying to make a case for public funding, I would think more broadly that the pressures of fundraising eat up more of the Senator’s time. It is not just the fact that they’re not waging out filibusters. We may imagine that they are going to community meetings, and learning about legislation, and building up votes. And all of the legislative work that we would like them to do competes for a Senator’s time with fundraising. I think there is a broader point to make, not just on filibustering, but on the pressures of a Senator’s time. I would be relieved if they didn’t have to fundraise so much.

MM: There are now a number of ideas for curbing obstruction. What do you think of Senator Tom Harkin’s proposal to decrease the number of votes needed to obtain cloture? And more generally, which ideas for reform do you think have the most hope of being effective?

GK: I am not at all optimistic that the Harkin reform would have a beneficial effect. The problem is that it is focused on changing the cloture threshold. If you want majority rule in the Senate, then let’s completely obliterate the right to filibuster and impose majority rule. If Senators are not willing to do that, then a threshold that gradually reduces the votes, three votes at a time, would probably have the opposite effect of what Senator Harkins intends -- it would invite much more filibustering.

If I were a member of a minority party in the Senate and the Harkin proposal is adopted, I would respond by filibustering everything -- every motion, every bill, every amendment. What you need to understand, is that even on the fourth cloture vote, the majority could out vote me. But by forcing them to cast four cloture votes on everything, I would redeem a great deal of bargaining leverage and get back to at least where I was before. It is the sort of idea that appeals to people who only care about one thing at a time: that one Supreme Court Judge; that one major bill. But when you think about how the rule would apply to a Senate who has to make hundreds of decisions over the course of two years, it would be very ineffective. Think of everything the Senate has to do, and then imagine if they have to go through four cloture votes to do it in this post-Harkin world.

There is this idea that filibustering can actually have a positive effect on promoting compromise, on limiting effects on party leaders, and driving bad legislation from a chamber from time-to-time. Rather than eliminating filibustering, I would promote a mechanism that would reverse the burden filibusters create. Right now, when there is a filibuster and then a cloture vote, in order for cloture to be provoked, 60 Senators have to vote for cloture. I would reverse this and require that 41 Senators have to vote against cloture. It is the same threshold, but it reverses the burden of participation.

MM: I wonder if that would change the accountability.

GK: Right. It changes the ethic. The idea is that if a bill or nomination makes it to the Senate floor, it deserves a vote. And then the question is, who is keeping us from having a vote?

But what I also like about it, is that in a world in which the time of a Senator is extremely valuable, it imposes some greater cost on people who are waging a filibuster. Imagine that the majority party starts to file its cloture motion on Thursday. That means that the vote will occur on Saturday. Let’s say they file their petition on Friday. That means you’d also have a vote on Sunday. And so, in order to block legislation, or nomination, the people who are opposed would actually have to come in on the weekends. They wouldn’t be home in their states; they wouldn’t be off having fun. They would have to be serious enough about their filibusters to give up on the other things that they could be doing with their time. That’s why I like it.

MM: Appropriations?

GK: Appropriations is one. So, Norm Ornstein at the American Enterprise Institute is advocating that there shall be no filibustering against appropriations bills. It’s a basic job of Congress to pass these appropriations bills. They’re getting gummed up. In a simple category, I would set up expedited procedures for executive nominations, and some sort of quick super-majority process for simple legislation. In the House, if I wanted to pass a bill to, say, name a post office, they have what is called ‘Extension of the Rules.’ So, I bring up a bill, talk for thirty minutes, and then there is a two-thirds vote to decide if it passes, or not. The Senate has traditionally passed a law that that type of legislation must be passed by unanimous consent, which then means that any one Senator that is feeling cranky that day can keep it from passing. So, to prevent one cranky person from jamming up the small bills, it would make sense to have something like the ‘extension of the rules’ process. Which is, bring the bill, do the vote, let it pass quickly.

MM: Theoretically, I think that that could impact the tradition of holds because that would basically make one Senator placing a hold responsible for proving that it was a viable threat for a larger-scale filibuster rather than just a threat of them objecting to unanimous consent.

GK: Well, more than that, it would be an assault on the practice of holds. A hold, in its most general form, is keeping legislation off the floor for a limited period of time—just a few days. And often there are sincere reasons for doing this; you want to actually read the bill, you want to prepare amendments. For Senators, they often want to be in on the discussions for what process will be used when the bill comes to the floor. It is all pretty legitimate. It becomes illegitimate when people complain when it is really a one person veto that becomes unanimous. In the later case when a person has just been vetoing a bill or nomination for an extended period of time, just sort of sitting in doldrums for a while, then it would be great to have some sort of process that would bring down the one person, or the ten people, that are objecting, to just get it done.

Lastly -- and this is actually a standard suggestion going back to the Congressional Reform Committee of 1993-94 -- if, like me, you think that filibusters can be good, and it makes sense that major legislations have to run that gauntlet, it doesn’t make sense why a bill should have to run the gauntlet multiple times. So, it would make sense, for example, to eliminate filibusters on the motion to proceed. That’s an agenda setting motion that sort of brings a bill to the floor. So, when financial reform was passed in the Senate, the Republicans were first filibustering against the motion to proceed. They were arguing that they didn’t like the bill. But if you don’t like the bill, that means bring it to the floor and offer amendments to it. It doesn’t mean that you should keep the bill off the floor in the first place. So, if you don’t like the bill, bring it to the floor. Either offer amendments or filibuster. At least let it get to the floor in the first place.

A second point is that it has gotten a lot harder for legislators to go to conference committees because if a Senate committee decides they want to go to conference committee on the bill, there are actually three motions that have to pass to do that; to disprove another Chamber, to request a conference, and then to appoint conferees. So those motions, of course, are subject to a filibuster. I would condense that, or actually even out the allowance to filibuster the motions to go to conference and start the negotiation process, and still allow Senators to filibuster the product of that Committee. But at least allow the negotiation to occur.

MM: Those reforms would ensure that the filibuster is actually doing what its defenders say it is supposed to do, which is to promote actual deliberation and debate. Whereas, if you’re filibustering a motion to proceed, you’re actually preventing the deliberation.

GK: That is correct. If these reforms actually got to a vote, it would be hard for Senators to sincerely oppose them – except out of raw interest for maintaining every opportunity to filibuster, if they’re in the minority.

One last thing on that point, Senator Merkley of Oregon has proposed that the Senators adopt reforms that are implemented in six years, since they don’t know where they will be in six years. And that way, they can think more about the broader implications, and less about their own strategic situation that they want right now, and for the next two years.

I would imagine, if the Senators actually did walk out from behind closed doors and say, ‘we’ve got these reforms and we want to implement them in six years,' that the next question will be: if they’re good in six years, why not make them active now? I think that would be a very tough question to answer.

Gregory Koger is an assistant professor of political science at the University of Miami and the author of Filibustering: A Political History of Obstruction in the House and Senate (Chicago Studies in American Politics), University of Chicago Press.

Mimi Marziani is a lawyer at the Brennan Center for Justice.

A Funny Thing Happened to Dick Armey on His Way to Mega Prominence…

2010-08-07T09:19:54+00:00

Give Us Liberty: A Tea Party Manifesto
by Dick Armey and Matt Kibbe

Reviewed by Jesse Kornbluth

Dick Armey's father, the operator of a North Dakota grain elevator, liked to fish with his son in Canada. As they drove, the boy noticed painted barns “straight from a Norman Rockwell canvas.” But at the border, as Armey writes on the third page of his new book, Give Us Liberty: A Tea Party Manifesto, the scenery changed:

The barns were unpainted. I wondered why Canadian farmers would allow their barns to degrade from exposure to the elements. The answer, I discovered, was government. At the time, Canada taxed painted buildings, so farmers left their structures exposed to avoid the penalty. These things make quite an impression on a child.

Yes, but what if it's the wrong impression?

My fact-checking suggests it is. Large unpainted barns were often erected in Southern Canada in the late 19th Century --- and the custom seems to have continued. The Canadian government had nothing to do with the décor of those barns. The reasons the barns were unpainted were culture and esthetics.

A childhood misimpression casts a long shadow. At some point, Armey might have run across a different explanation. But this one neatly fits his politics. And now he passes that misinformation on.

Misperceptions can be useful. In the early '90s, the economics professor cast his lot with Conservative Republicans at exactly the right time, beating the drums in the House of Representatives against Bill Clinton's efforts to reduce the deficit the old-fashioned way --- by raising taxes. Later, when Armey's side was in charge, he was one of the Republican leaders who delighted in cutting taxes and growing the federal budget.

Consistency was never Armey's strongest suit. His view of the Clinton sex scandal: "If I were in the President's place, I would not have gotten a chance to resign. I would be lying in a pool of my own blood, hearing Mrs. Armey standing over me saying, 'How do I reload this damn thing?'" This quip backfired --- it inspired some of his former students to recall episodes of sexual harassment by Professor Armey. (There is now a second Mrs. Armey.)

In 2003, after eight years as Speaker of the House, Armey resigned and joined the Washington law firm now known as DLA Piper as a senior policy advisor, or, in plain English, as a lobbyist. The job paid well --- a reported $750,000 a year. But lobbyists are not in the public eye, so he also became co-chairman of Citizens for A Sound Economy, which, the following year, became FreedomWorks. The cause grew rapidly, and, by 2008, FreedomWorks was paying Armey a salary of $550,000.

Better believe he's visible now.

The philosophy of FreedomWorks is straightforward: “Lower Taxes. Less Government. More Freedom.” It is, if you've tried to trace its ideas, a hopelessly self-contradictory program. The Tea Baggers want to cut the deficit, but insist on lower taxes. They hate national health care, but love Medicaid. [In his book, Armey and his collaborator, Matt Kibbe, write that “the government should be concerned with protecting my liberty, not my liver.” ] They want freedom --- mostly from government --- but also want the Feds to do more to punish illegal immigrants. They are, in short, an ignorant army, pumped up by Glenn Beck, Sarah Palin and FreedomWorks to campaign for programs that would benefit them not at all. No matter. Their ideas are of less consequence than their numbers and the shrillness of their voices.

A funny thing happened to Dick Armey on the way to mega-prominence --- his employer and his cause turned out to be on opposite sides of several issues. DLA Piper represented drug companies that, at least initially, supported health care reform. And the firm represented General Motors, Lehman Brothers and Merrill Lynch. FreedomWorks opposed TARP.

Conservative bloggers noted these conflicts and attacked. Armey said he was the victim of a conspiracy --- 'I wouldn't be surprised if it stemmed from information put out by allies of the Obama administration” --- but in August of 2009, he resigned from DLA Piper. "I hated to walk away from that kind of money," he said. “How many times in your life, or anybody's life, do they have an opportunity to earn that kind of money when they are 69 years old?"

These days money is not his problem. His movement is. In the courts, the Tea Party is losing, The Administration vs. Arizona. Overturning Proposition 8. Another liberal woman on the Supreme Court. With every decision that “they” lose, you can picture their rage spiking.

Meanwhile, Armey and Fox and the right wing bloggers have been screaming “Take back America” for so long that they will almost surely incite some event that sets “real” America against illegals, deviants, liberals and, mostly and especially, the President.

And soon.

At a Tea Party event, someone will turn on an idiot protestor. Or a Tea Party member will decide to right some wrong. A gun will go off. And there, along with blood and death, will be the media's useless and overdue finger-pointing.

On August 28 --- the anniversary of Martin Luther King's March on Washington --- Glenn Beck is leading a march on Washington of his own. This is worrisome. Since January 19th, 2009, Beck attacked the little-known Tides Foundation on his show 29 times; in July, one of his fans was arrested after a shootout with the California Highway Patrol. His plan: “to start a revolution" by attacking the American Civil Liberties Union and --- you guessed it --- the Tides Foundation. So Beck has called for marchers at his rally to sign an oath of non-violence. Bring your gun if you must --- it's your Constitutional right --- but don't pull the trigger.

Glenn Beck is working hard to make sure he cannot be held responsible for any violence.

That is why, I think, Armey uses the final 65 pages of his 245-page book to make it clear that FreedomWorks is not a leader of the Tea Party movement. Nobody is. It's local. Grassroots. FreedomWorks exists simply to support those groups and give them tips on organizing their events and meetings. Talking points, rallies, slogans --- all that comes, spontaneously, from patriots whose names we wouldn't recognize.

These pages, like the first 244 pages, are not terribly illuminating. They are very likely untrue. But to talk about them in journalistic or literary terms is to miss their purpose. “Give Us Liberty” may bear a publisher's imprint --- surprise: the publisher is Rupert Murdoch --- but it is not a book.

Dick Armey has, cleverly, published his legal defense.

Jesse Kornbluth is editor of HeadButler.com

Dick Armey's father liked to take time from his work as the operator of a North Dakota grain elevator to fish with his son in Canada. As they drove, the boy noticed painted barns “straight from a Norman Rockwell canvas.” But at the border, as Armey writes on the third page in his new book, “Give Us Liberty: A Tea Party Manifesto,” the scenery changed:

The barns were unpainted. I wondered why Canadian farmers would allow their barns to degrade from exposure to the elements. The answer, I discovered, was government. At the time, Canada taxed painted buildings, so farmers left their structures exposed to avoid the penalty. These things make quite an impression on a child.

Yes, but what if it's the wrong impression?

My fact-checking suggests it is. Large unpainted barns were often erected in Southern Canada in the late 19th Century --- and far from degrading, some of them were surely on the Armeys' route North when Dad took Dick fishing in 1950.

The Canadian government had nothing to do with the décor of those barns.

The reasons the barns were unpainted were culture and esthetics.

A childhood misimpression casts a long shadow. At some point, Armey might have run across a different explanation. But this one fits his politics so perfectly. And now he passes that misinformation on.

Misperceptions can be useful. In the early '90s, the economics professor cast his lot with Conservative Republicans at exactly the right time, beating the drums in the House of Representatives against Bill Clinton's efforts to reduce the deficit the old-fashioned way --- by raising taxes. Later, when his side was in charge, he was one of the Republican leaders who delighted in cutting taxes and growing the federal budget.

But consistency was never Armey's strongest suit. His view of the Clinton sex scandal: "If I were in the President's place, I would not have gotten a chance to resign. I would be lying in a pool of my own blood, hearing Mrs. Armey standing over me saying, 'How do I reload this damn thing?'" This quip backfired --- it inspired some of his former students to recall episodes of sexual harassment by Professor Armey. (There is now a second Mrs. Armey.)

In 2003, after eight years as Speaker of the House, Armey resigned and joined the Washington law firm now known as DLA Piper as a senior policy advisor, or, in plain English, as a lobbyist. The job paid well --- a reported $750,000 a year. But lobbyists are not in the public eye, so he also became co-chairman of Citizens for A Sound Economy, which, the following year, became FreedomWorks. The cause grew rapidly, and, by 2008, FreedomWorks was paying Armey a salary of $550,000.

The philosophy of FreedomWorks is straightforward: “Lower Taxes. Less Government. More Freedom.” Lobbyists have more pliable philosophies. So while FreedomWorks loathes national health care --- in his book, Armey and his collaborator, Matt Kibbe, write that “the government should be concerned with protecting my liberty, not my liver” --- DLA Piper represented drug companies that, at least initially, supported health care reform. FreedomWorks opposed TARP; Armey's firm represented General Motors, Lehman Brothers and Merrill Lynch.

Conservative bloggers noted these conflicts and attacked. Armey said he was the victim of a conspiracy --- 'I wouldn't be surprised if it [the criticism] stemmed from information put out by allies of the Obama administration” --- but in August of 2009, he resigned from DLA Piper. "I hated to walk away from that kind of money," he said. “How many times in your life, or anybody's life, do they have an opportunity to earn that kind of money when they are 69 years old?"

These days money is not his problem. The Tea Party movement is. Not its numbers --- by Armey's count, the movement is hotter than Lady Gaga. And not its message --- that is now Republican doctrine.

The problem is that Armey and Fox and the right wing bloggers have been screaming “Take back America” for so long that I don't see how they fail to incite some event that sets “real” America against illegals, deviants, liberals and, mostly and especially, the President.

It gets worse. In the courts, the Tea Party is losing, The Administration vs. Arizona. Overturning Proposition 8. A New York lesbian on the Supreme Court. With every decision that “they” lose, you can picture their rage spiking.

At some point, this kind of volatility has its catalytic moment. At a Tea Party event, someone will turn on an idiot protestor. Or a Tea Party member will decide to right some wrong. A gun will go off. And there, along with blood and death, will be the media's useless and overdue finger-pointing.

On August 28 --- the anniversary of Martin Luther King's March on Washington --- Glenn Beck is leading a march on Washington of his own. This is worrisome. Since January 19th, 2009, Beck attacked the Tides Foundation on his show 29 times; in July, one of his fans was arrested after a shootout with the California Highway Patrol. His plan: “to start a revolution" by attacking the American Civil Liberties Union and the Tides Foundation. So Beck has called for marchers at his rally to sign an oath of non-violence. Bring your gun if you must --- it's your Constitutional right --- but don't pull the trigger.

This is the key point: Glenn Beck must make sure he cannot be held responsible for any violence.

Ditto Dick Armey.

That is why, I think, Armey uses the final 65 pages of his 245-page book to make it clear that FreedomWorks is not a leader of the Tea Party movement. Nobody is. It's local. Grassroots. FreedomWorks is around simply to support those groups and give them tips on organizing their events and meetings. Talking points, rallies, slogans --- all that comes, spontaneously, from patriots whose names we wouldn't recognize.

These pages are not terribly illuminating. They are very likely untrue. But to talk about them in journalistic or literary terms is to miss their purpose. “Give Us Liberty” may bear a publisher's imprint --- surprise: the publisher is Rupert Murdoch --- but it is not a book.

Dick Armey has, cleverly, published his legal defense.

Should Monsanto � makers of PCB and Agent Orange � control our food supply?

2010-08-06T16:37:58+00:00

The World According to Monsato
by Marie-Monique Robin

Reviewed by Peter Lehner and Vivian Wang

Each bite of food that we consume carries political and ecological implications – implications that Marie-Monique Robin unveils in her scathing indictment of the agribusiness giant, Monsanto. In The World According to Monsanto: Pollution, Corruption, and the Control of Our Food Supply, Robin traces the history of Monsanto from its production of polychlorinated biphenyls (PCBs) in the 1930s and its supply of dioxin for Agent Orange in the 1950s, to its present-day manipulation of genes to produce bovine growth hormone and transgenic corn, soybeans, and cotton.

Robin marshals stories from government whistleblowers and farmers around the world, along with data from the FDA and studies suppressed by governments, to weave an alarming tale of the environmental and health implications of Monsanto’s control of seeds and food. Monsanto’s market dominance – established, admittedly, by sound business efforts but also through the support of the suppression of science, patent litigation to control the seed market, and deceptive advertising, and facilitated by the government’s inadequate oversight – presents a serious challenge for citizens concerned about the sustainability of our food system.

Robin focuses particular attention on Monsanto’s effort to silence studies questioning the safety of genetically modified (“GM”) crops. Lectins are plant proteins that act as natural insecticides and the lectin from snowdrop plants has been found effective against aphid infestation of potatoes while being harmless to mammals. In the mid-1990s, the pro-GM British government asked Dr. Arpad Pustzai to test transgenic potatoes modified to produce the snowdrop lectin. Dr. Pustzai found that different lines of transgenic potatoes contained quantities of lectin varying up to twenty percent, despite the fact that the genetic manipulation process was supposed to produce a consistent effect. The potatoes also had unexpected health effects – rats fed the transgenic potato had underdeveloped brains and livers, atrophied pancreatic and intestinal tissue, pre-cancerous cells in their stomachs, and overreactive immune systems. Not long after Dr. Pustzai revealed these results to the UK advisory committee in charge of GM food safety, his research contract was suspended, his team was dissolved, and his research was discredited with claims that he accidentally used a toxic lectin instead of snowdrop lectin in his studies. (Subsequent studies have supported Dr. Pustzai’s findings that the transgenic potatoes may affect immune function.) Robin asserts that the British government had been pressured by the American government to suppress publication of Dr. Pustzai’s study and that the American government, in turn, had been under pressure from Monsanto, which feared that the study would harm the biotech industry.

A theme that emerges from Robin’s narrative is the inadequacy of government regulation. Federal agencies like the EPA and FDA are vulnerable to “capture” by industry – becoming unduly influenced by the parties they are supposed to regulate. This is in part because industry’s resources far outstrip those of the government, and regulators are often forced to rely on scientific data generated by industry. The government may be unable to independently verify the data, and, as Robin points out, may even be denied access to data on the grounds that they constitute confidential business information. The “revolving door” further fosters an uncomfortably close relationship between the regulator and the regulated. For example, Robin reports that Michael Taylor, FDA’s deputy commissioner in charge of setting policy on GM crops, was formerly an attorney for Monsanto and the International Food Biotechnology Council. Hired by the FDA in 1991, Taylor aided in decisions approving GM crops. After his government tenure, Taylor returned to Monsanto as its VP of public relations.

This problem of regulatory capture is not confined to food regulation, of course. Just consider the news footage of tens of thousands of barrels of oil that until very recently, hemorrhaged daily into the Gulf of Mexico. Investigations of the regulatory agency, Mineral Management Service, revealed a culture of lax oversight, with inspectors who accepted gifts from one oil company and an employee who conducted inspections of drilling platforms while negotiating for a job with the drilling company.

A Supreme Court decision issued in June demonstrates a fundamental challenge presented in Robin’s book – the role of regulation in the face of uncertain ecological risk. Monsanto’s Roundup Ready Alfalfa (RRA) is an alfalfa crop engineered to tolerate glyphosate, the active ingredient of the Monsanto herbicide Roundup. In response to a Monsanto petition, the Animal and Plant Health Inspection Service (APHIS) deregulated two strains of RRA. Environmental groups and conventional alfalfa seed farmers filed suit. The district court agreed that APHIS violated federal law by failing to address whether deregulation would lead to transmission of the glyphosate-tolerant gene from RRA to organic and conventional alfalfa, and whether RRA would contribute to development of Roundup-resistant weeds. (Robin reports that before the advent of Roundup Ready soybeans, Argentina used one million liters of glyphosate annually. Because of increasing herbicide resistance, that figure reached 150 million liters by 2005.) The district court prohibited all future plantings of RRA pending APHIS’s completion of the required environmental impact assessment. The Supreme Court reversed this decision.

The legal issues presented in the Monsanto litigation (whether the district court correctly applied the standard for injunctive relief) is, for purposes of this discussion, less important than the underlying difficulties of risk assessment and the burden of proof in regulatory decisionmaking. Despite substantial evidence that RRA genes could transfer to other plants, APHIS agreed to unconditionally deregulate RRA. In his dissenting opinion, Justice Stevens cited the district court’s detailed review of internal agency documents. Some APHIS scientists had warned that contamination of organic crops may occur, yet the agency concluded that the risk is “not significant because it is the organic and conventional farmers’ responsibility” to protect themselves and the environment. The agency reached this conclusion without having investigated whether farmers could in fact protect their crops from such contamination, given the variables of wind, bird, and bee pollination.

Whether it is the impacts of transgenic crops or the BP oil spill, mountaintop removal mining or natural gas drilling, the problem of inadequate regulation is a challenge for environmental and consumer advocates. What can be done? Raising consumer awareness is one crucial step. The pressure of an educated consumer base can force changes in corporate behavior. Witness the shift away from trans-fats, high fructose corn syrup, and milk from cows injected with bovine growth hormone. Legislative reform is another avenue for change. The burden of proof should be on companies to establish the environmental and human health safety of products before they are allowed on market. Whistleblowers need stronger employment protection. Other useful reforms include improving EPA and FDA coordination over health and environmental testing for GM crops and enacting strong consumer protection laws that prohibit false and deceptive advertising of products’ environmental attributes (“greenwashing”).

While Robin does not purport to set forth a battle plan against Monsanto’s domination of seeds and science, her book does an admirable job of drawing our attention to the forces that influence how we grow crops and what we eat – essential acts that merit far greater scrutiny from us and our governments.

Peter Lehner is the Executive Director of the Natural Resources Defense Council and Vivian Wang is a Legal Fellow at the Natural Resources Defense Council.

My Life With My Brother�s Killer

2010-08-06T16:20:59+00:00

Thirty years ago, a drunk driver killed my brother. I’ve been thinking about the homicidal driver ever since. Then, I found him on the Internet…

By Beth Greenfield

This past year, I wrote and published a book, Ten Minutes from Home, about how my family was affected by the drunk driving accident that killed my brother and my best friend nearly thirty years ago. While working on it, I began to wonder about what had happened to the man who hit us.

All I knew about him was that his name was Edward Pahule, that he was a Milwaukee native stationed at a Jersey Shore naval base, and that he was on a liquor-fueled bender on the June night my family and I happened to be heading home from my yearly ballet recital. When he hit us, he took the lives of my brother, who was 7, and my best friend, who was 13 — just a year older than me.

I found Edward Pahule quickly on the Internet. And I learned that he is back in Wisconsin, and that he is a blogger. I even found a photo of him—a tiny headshot, in which he looks like a normal-enough guy, with a graying beard and wire-framed glasses and a mellow smile—and I stared into his eyes for a while, conscious that I was, at last, looking into the face of Adam’s killer.

I used to fantasize about looking him in the eye.

Edward Pahule got off easy. He was sentenced to just six months in jail. This was New Jersey, 1982—the highest-record year for alcohol-related car fatalities in the state, and a low point for drunk driving laws and penalties. It was an irony that filled my grief-stricken father with a burning anger, and he set out to find ways to right our wrong.

“We’re just going to put those scumbags away!” he would report after returning home from frequent meetings of the New Jersey Task Force on Drunk Driving. He joined the group shortly after being released from his post-accident hospital stay, during which he’d recovered from a punctured lung, a broken shoulder and a bruised heart. “They want to suck down the booze and then get in their cars? Fine. No problem. We’ll let ’em rot in jail, that’s all.”

My mother, though, was not interested. “Is that going to bring him back?” she would shout, stone-faced, at my father who would sigh and look at the floor. “Then I don’t want to hear it!” She had no use for any form of revenge or justice, from what I could see, because none of it could make our family whole again.

My own thoughts on the subject hovered somewhere in between my parents’ two extremes. Mostly I didn’t think about blame or punishment, as I, too, saw it as useless—unable to make me a big sister to Adam or best friend to Kristin again. But I would sometimes think about meeting the drunk driver face to face. I would watch those early-’80s TV talk shows as they brought together sobbing, chest-thumping survivors with the killers of their children or parents or lovers, and something in me would long to be a part of the action—to walk onto Phil Donahue’s set and stand before Edward Pahule so he could crumple and apologize with the world watching.

Later, when I was in high school and working a part-time job in a clothing store at the mall, I would have distracting daydreams in which I would take someone’s credit card for a sale, look down at the raised-plastic cardholder’s name and see that it read EDWARD PAHULE. Some days I would think that every card handed to me would definitely be his—even if the purchaser was a woman, which it almost always was—and I would shake with anticipation and will myself not to read the name on the card until the moment before I handed it back so I could ready myself for an appropriately fired-up response. But what would I have possibly said? I had no idea. I just thought that making him see me would stir something in him and make him truly regretful.

My father’s brand of justice never appealed to me. In high school, when I learned that a few of my friends were banding together to form a chapter of SADD, I was horrified—self-conscious and guilty that I wasn’t involved. But I just couldn’t do it. I couldn’t risk sitting in a classroom after the final bell of the day had rung, hanging out with this handful of well-meaning peers and trying to look like anyone else, like a normal student who just happened to choose SADD as an extra-curricular activity, the same way I might’ve chosen debate club or field hockey or chess.

Eventually I’d head off to college—a private liberal-arts school in Connecticut—and it quickly dawned on me that I was among spoiled rich kids, and so I asked my parents, a pair of teachers, how we were able to afford such an education. “Money from the accident,” my father blurted out. It made me sick to know it, that we’d gotten money out of the deal, and that I was going to school with it. It didn’t only feel unjust, but rotten, and cheap. But it was the way of the legal system; money for the victims and jail time for the offenders was pretty much all it had to offer—and neither one, as far as I was concerned, could offer anything that worked to take the edge off grief.

All these years later, I haven’t thought much more than I had as a teen about seeking justice for what our family went through. The idea of more jail time for the man who hit us sounds like it would have been a good idea, but even if he was still locked up to this day, I know that fact alone wouldn’t have eased my years of grief and healing.

Beth Greenfield, is the author of Ten Minutes From Home.

To Kill a Mockingbird is 50!

2010-08-06T08:48:35+00:00

Atticus Finch, America's most beloved lawyer -- and father, is as inspired as ever.

by Austin Sarat

“You know something, Mr. Cunningham, entailments are bad.”

Scout in To Kill a Mockingbird

To Kill a Mockingbird turns 50 this year, and 2012 will mark the 50th anniversary of the release of the film version. The novel won a Pulitzer Prize in 1960 and, in 2003, the American Film Institute named Atticus Finch the greatest movie hero of the 20th century. While it is fair to say that both novel and film have become staples of American cultural life, as they turn 50, we should ask: is theirs a legacy we should celebrate?

Set in a southern town during the Depression, its central character, Atticus Finch, an iconic citizen-lawyer, is called on to defend an African-American accused of raping a white woman. At the time of its release, readers and viewers of To Kill a Mockingbird were located in the era between Brown v. Board of Education and the passage of the 1964 Civil Rights Act. As the controversy over the recent firing of US Department of Agriculture employee Shirley Sherrod highlighted, the quest for racial justice that Atticus pursued by no means has been fully vindicated.

Although Atticus is sometimes criticized for being too accommodating to the segregated world in which he lived and practiced law, he remains popular culture’s most important embodiment of lawyerly virtue. As law professor Steven Lubet recently observed, “Lawyers are greedy. What about Atticus Finch? Lawyers only serve the rich. Not Atticus Finch. Professionalism is a lost ideal. Remember Atticus Finch....Atticus serves as the ultimate lawyer. His potential justifies all of our failings and imperfections. Be not too hard on lawyers, for when we are at our best we can give you an Atticus Finch.”

However, To Kill a Mockingbird is of enduring value not just because it is a lawyer’s story, but also because it is a story of fatherhood and of fatherhood’s complex associations with the law. Told as Scout’s memory of her father (Atticus), her brother (Jem), and the town where she grew up, her tale of Atticus is highly idealized. As Scout puts it, “There just didn’t seem to be anyone or anything that Atticus couldn’t explain.” While many attend to Atticus the lawyer, Scout calls on us to attend to Atticus the father as well.

Indeed, legal scholars, since Freud, have called attention to the complex associations of paternity and legality. They have portrayed a deep-seated longing for paternal power and the overwhelming power that fathers exercise as basic to legal authority. One of the most famous of these formulations is found in Jerome Frank’s early 20th century classic, Law and the Modern Mind. There Frank suggested that law is a projection of a widely shared human need for certainty and security in a world of danger, and he offered a view of law as the father or, more precisely, as the father-substitute. “To the child,” Frank argued, “the father is the Infallible Judge, the Maker of definite rules of conduct. He knows precisely what is right and what is wrong and...sits in judgment and punishes misdeeds. The Law....inevitably becomes a partial substitute for the Father-as-Infallible-Judge....”

To Kill a Mockingbird shares with many mid- to late-twentieth century novels and films an interest in exploring the connections between law and fatherhood that Frank noted, offering readers and viewers a chance to consider what fatherhood can reveal about law and law about fatherhood. On its 50th anniversary we are again reminded of the role that fathers and fatherhood play in cultural imaginings of law and in exemplifying the various faces of law’s power. Atticus Finch is a father and a lawyer committed to a particular vision of both fatherhood and law --one in which both can transcend, if not transform, the context in which they exist, one in which an orientation toward the future takes precedence over controlling the present, one in which the temporal horizon of law and fatherhood is kept firmly in view. In Atticus, law and fatherhood are both powerful and yet limited in their power, both existing in the present but oriented toward an as yet unrealized future.

To Kill a Mockingbird offers our era a view of law and fatherhood quite different from Jerome Frank’s imagining. Atticus Finch and the legal commitments he exemplified are focused on becoming as much as on being, and on the quest for racial justice as a lived experience for his children. Atticus as father/lawyer is a bridge between past and future. The past weighs heavily on Atticus, even as he tries to point his children toward a better future. What Scout calls “bad” entailments are legacies against which Atticus sets himself, the legacies of racism, race privilege, and violence, which in the mid-twentieth century American south remained powerfully in place.

In setting himself against those legacies, the father offers his children an example, a different way of being in the world, a model of adult values and sensibilities that oppose racism and racial stereotyping of the kind that showed their ugly face in the Shirley Sherrod incident. His example is as relevant in today’s supposedly post-racial era as it was in the heyday of the Civil Rights movement. It is worth celebrating as To Kill A Mockingbird’s turns 50.

Austin Sarat is William Nelson Cromwell professor of Jurisprudence and Political Science at Amherst College and the editor of Law and the Stranger (The Amherst Series in Law, Jurisprudence, and Social Thought).

Should The New York Times be prosecuted for disclosing Bush Administration secrets?

2010-08-06T08:22:54+00:00

Necessary Secrets: National Security, the Media and the Rule of Law
by Gabriel Schoenfeld

Reviewed by Fritz Schwarz

This is a thoughtful, important, and interesting book.

Necessary Secrets’ principal point is that for four decades, the media has become reflexively dismissive of government claims that publication of certain secrets will severely damage national security. The main target is The New York Times, which Schoenfeld contends should have been prosecuted for its revelations in 2005 and 2006 about the Bush Administration’s secret warrantless wiretapping and bank information programs.

Schoenfeld’s case for prosecution is flawed. But Schoenfeld is not a single-minded ideologue. To the contrary, he sees both sides of important issues, and touches on some weaknesses in his case for prosecution. Moreover, the book is well worth reading for its sweeping, and often gripping, historical survey of leaking since the Revolution.

Despite getting his case for prosecution and a few facts wrong, Schoenfeld sparks an interesting debate, one that readers will want to join.

Schoenfeld begins by harking back to our Founding Fathers, noting that while they “constructed a political system based on a high degree of transparency,” and believed “openness is an essential prerequisite of self-governance,” they did not flash a green light for the publication of any and all secrets. Thus, as two early examples, George Washington wrote during the Revolution that “there are some secrets, on the keeping of which so depends, oftentimes, the salvation of an Army.” And Patrick Henry, in opposing ratification of the Constitution, partially on the ground of its lack of sufficient transparency, said he nevertheless “would not wish to be published” material relating “to military operations or affairs of great consequences, the immediate promulgation of which might defeat the interests of the community.”

Words aside, the Founders’ actions placed limits on openness. The Constitutional Convention of 1787, for instance, was conducted in strict secrecy—although the significance of this has been repeatedly exaggerated by secrecy advocates, including the Supreme Court in United States v Nixon.[2] Moreover, the Constitution itself allows both the Senate and House to meet in secret—although a seldom noticed provision allows one-fifth of the members to force all votes to be made public.

In developing his case against the Times, Schoenfeld uses his description of the Founders to tut tut at Times’ editor Bill Keller for contending that the “‘people who invented this country’” would obviously have blessed the Times’ publication of the Bush-Cheney secrets.

But then, in his typically fair approach, Schoenfeld rejects Scalia-type “originalism.” Today’s secrecy issues should not be resolved—either pro or con—by reliance on the Founders’ views. Too much has changed. The presidency “has grown hugely in scope and power since 1789,” and “successive technological revolutions have given the executive branch surveillance and information-storage powers of astonishing reach.”

To buttress his point that there are secrets whose disclosure harms the nation, Schoenfeld dramatizes a series of leaks. The earliest was the revelation during the Revolution that France had been secretly providing a “massive covert infusion” of money and material assistance to America’s hard pressed revolutionary army. The French were still publicly neutral. The leak embarrassed them—though they continued to support the revolutionaries; soon doing so openly.

The leaker was Thomas Paine, then Secretary of Congress’s Foreign Relations Committee, and earlier the author of Common Sense, the powerful pamphlet that boosted American’s revolutionary spirit. While Paine faced “scathing attacks” and lost his job, he suffered no further penalty. Indeed, years later, on George Washington’s recommendation, Paine was rewarded for his services to the Revolution with an estate in New Rochelle.

This early example of immediate expressions of outrage about a leak, but no more serious action, has often been repeated in the more than two centuries after Paine. When Schoenfeld makes his case for prosecution of the Times, this pattern is one of many problems he candidly recognizes.

Jumping ahead to the 1930s, a huge leak was triggered by Secretary of War Henry Stimson’s cutting back on American code breaking because, in his view, “gentlemen do not read each others mail.” America’s leading code breaker, Herbert Yardley, suddenly “out of a job in the Great Depression,” and believing that code breaking was a valuable tool for the nation, responded with a book that revealed all the codes we had broken since World War I. One possible publisher, Viking, rejected the book after consulting military intelligence because of “harm to the national interest.” But Bobbs-Merrill decided to publish. “Aware of the risks, its lawyers did not advise restraint.”

Among the broken codes highlighted by Yardley’s book were Japan’s––first used to Japan’s disadvantage at the Washington, D.C., Naval Conference held in 1921 where Americans read all the coded messages sent or received by the Japanese. As Yardley put it, five-card “stud poker is not a difficult game after you see your opponent’s hole card.”

Schoenfeld asks whether the Japanese attack on Pearl Harbour on December 7, 1941, would have been prevented absent Yardley’s leak. Thus, Schoenfeld quotes telegrams on December 5 and 6 to and from a Japanese Consular official in Hawaii referring to “a surprise attack” on U.S. Naval ships in Pearl Harbour. These cables were not successfully decoded and read until after the attack—perhaps because after the Yardley book, the Japanese continually revised and tightened their codes.

In an echo of Paine being given a New Rochelle estate, however, Yardley, while derided for the book when it was published, “lies undisturbed in Arlington National Cemetery in a grave next to those of our greatest heroes.”

As World War II was waged, there were several more harmful leaks. For example, Congressman Andrew Jackson May learned on a tour of U.S. Pacific bases that American submarines were succeeding in part because Japanese depth charges were fused to detonate far above our submarines. May soon held a press conference boasting about the high survival rate of American subs, attributing it to the faulty Japanese calculations. The Japanese then recalibrated their depth charges. Later, the Commander of the U.S. submarine fleet in the Pacific estimated that the result was the loss of ten subs and the death of 800 U.S. sailors.

Also during World War II, the Chicago Tribune wrote a story about the June 1942 Battle of Midway, the major battle where the U.S. Navy began to turn the tide against the Japanese navy. The story included details that made clear that U.S. intelligence was reading the secret, coded Japanese naval communications. (The Tribune reporter had been on a U.S. ship where he was improperly shown a classified translation of the Japanese plan of attack on condition he not write about it. But he did.)

Neither Congressman May nor the Chicago Tribune (whose publisher, Col. Robert McCormick, despised FDR) faced any consequences.[3] The Justice Department did open a criminal investigation of the Tribune but decided not to indict, with Schoenfeld speculating that one reason was that a trial would call greater attention to our successful code breaking when “considerable uncertainty “remained about whether the Japanese knew.”

The Manhattan Project, responsible for building the atomic bomb during World War II, took secrecy to a historically unprecedented level which Schoenfeld captures concisely.[4] But what was surprising to me was the extent to which whiffs of revealing information seeped through the barriers. Tennessee newspapers mentioned “secret war production of a weapon that possibly might be the one to end the war.” The Washington Post said the Senate’s Truman Committee was investigating a half-billion dollar War Department project.[5] The Minneapolis Morning Tribune wrote in August 1944—one year before the bomb was used against the Japanese—that uranium sales were being restricted by the U.S. government, and that “all known explosives are popgun affairs compared to the dreadful power sub-atomic energy might loose.” And, also in August 1944, the radio program Confidentially Yours—which reached some two million listeners—announced that the Army would soon create a new weapon based on splitting the atom.

Fortunately, neither the Germans—who were working on their own bomb—nor the Japanese picked up these hints. Could those hints (or the Chicago Tribune’s story about Midway) possibly be missed in today’s internet age?

Then, for a flicker right after World War II, there was movement to relax secrecy. The wartime Office of Censorship was abolished. And, perhaps because leading scientists had expressed concern that blanket secrecy inhibited scientific progress, the original draft of the Atomic Energy Act called for “‘the free dissemination of basic scientific information and for maximum liberality in dissemination of related technical information.’” With the onset of the Cold War, however, the Act as passed and signed by President Truman, shifted and banned dissemination of any information touching on nuclear technology. Nuclear information was “born secret.”

Truman also expanded classification, and set tight rules on the handling of classified material. And Congress passed a new law making it a crime to make available, or publish, any classified information “concerning the communications intelligence activities of the United States.” Schoenfeld italicizes publish, and also notes that the Comint Act was endorsed “by the American Society of Newspaper Editors, an organization in which the leading editors of The New York Times were active members.”

Indeed, for a while after World War II, the media was generally relatively compliant with secrecy. Probably more than was good for the country. For, as later investigations—particularly the Church Committee for which I was Chief Counsel—and investigative reporting revealed, for decades secrecy stamps had all too often been used to cover foolishness, embarrassment, impropriety, and illegality.

But Schoenfeld says that in the 1950s and early 1960s “top reporters and columnists and approximately twenty-five news selling organizations, including The New York Times, Time, Inc., and CBS, had been secretly cooperating with the CIA in all sorts of ways.”[6] At some time in the late 1960s or early 1970s, however, there was, in fact, and as recounted by Schoenfeld, a sea change in how much of the media thought about secrecy. Schoenfeld uses two case studies to illustrate the change: Ramparts magazine’s exposure of the CIA’s secret relationship to the National Student Association and Daniel Ellsberg’s leak of the Pentagon Papers, first published in the Times.[7]

Schoenfeld concludes that the Ramparts story appropriately revealed CIA foolishness. It was “a virtually inevitable leak that flowed from the shortcomings of American intelligence, which, not withstanding its triumphs in the previous decade, was by the 1960s becoming increasingly sclerotic.”

After Ramparts, the Times’ exposed many other organizations “that had been on the payroll of the spy agency.” But Schoenfeld once again enjoys a dig at the Times:

“While publishing not a word about its own long-standing and intimate history of collaboration with the CIA, it dug further into the subsidies to others…”

As for the Pentagon Papers, Schoenfeld says the article in the Times and other papers revealed “no current operational secrets.” Moreover, the “principal harm” was “diplomatic embarrassment and a vivid demonstration to American allies and adversaries alike that the U.S. government was having severe difficulties keeping its secrets secret.” But, Schoenfeld opines, “both those forms of damage are no doubt ones that an open society, if it is to remain open, must accept.”

Nonetheless, in a precursor to part of his case against the Times, Schoenfeld characterized the leak as an “assault” on “orderly government” and, without much explanation, on “democratic self-governance itself”—”because we have an “elected president and elected representatives.”

Ramparts, and coverage of the Pentagon Papers by the Times and other papers, while important, were just part of the sea change in the media’s attitude toward secrecy. But, when assessing responsibility, Schoenfeld, for once, is overly simplistic. He places blame for the sea change squarely on the shoulders of Richard Nixon. Thus, Schoenfeld concludes his chapter on the Pentagon Papers by saying:

“If our country has had an especially unhappy history wrestling with secrets over the succeeding four decades, Richard Nixon is the major reason why. No other president in American history has given secrecy such a bad name.”

Nixon did secretly break the law—perhaps most outrageously in ordering the break-in of the office of Ellsberg’s psychiatrist. And Nixon then attempted stealthily to cover up White House crimes. But if Nixon’s were the only harmful excesses of Cold War secrecy, it would not have produced a sea change in attitudes toward secrecy.

Thus, while the Pentagon Papers were leaked during Nixon’s presidency, they dealt with earlier administrations: Johnson and Kennedy, and to a lesser extent Eisenhower and Truman. The sting in the press reports about the Pentagon Papers was that secret internal documents from the pre-Nixon administrations gave the lie to those administrations’ public statements about the Vietnam War. As for Ramparts, the story was published during the Johnson Administration, and exposed CIA funding of the National Student Association for the preceding twenty years.

In contrast to Schoenfeld’s singular blame on Nixon, the Church Committee proved that all six Administrations, of both parties, from Franklin Roosevelt through Richard Nixon had abused their secret powers. While Nixon and J. Edgar Hoover make “convenient villains,” the abuses were not the “work of a few bad men.”[8] The abuses were long lived and systemic.

Schoenfeld’s narrow focus on Nixon, and his related underestimation of the systemic, longstanding harms caused by excessive secrecy, are part of a mindset that helps explain the flaws in his case for prosecution of the Times.

Flaws in Schoenfeld’s Case Against the Times.[9]

Schoenfeld has both a simple and a convoluted case for prosecution. The simple case is we have been at war since 9/11 and this war is “overwhelmingly dependent” on the “effectiveness of the tools of intelligence,” which, in turn, depend on “their clandestine nature.” The convoluted case is that the warrantless wiretapping was classified; decisions about classification are made by presidents; laws against exposure of secrets are made by Congress; presidents and members of Congress were chosen in democratic elections—and, therefore, the Times’ articles were an “assault on democracy.”

To reach these conclusions, Schoenfeld underestimates the contribution of the Times’ article to public debate on a core issue in a constitutional democracy, and overestimates the harm caused by the article. In making these errors, Schoenfeld obscures what the Times’ article actually said, misstates the purpose of the law that requires warrants, and misreads historical examples from Presidents Lincoln and Roosevelt.

Let’s start with what the Times did—and did not—say. The headline of the Times’ article was “Bush Lets U.S. Spy on Callers Without Courts.” Its lead sentence was “[m]onths after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying . . . .” The focus of the article is on concerns within the government about “operational legality and oversight.” (The question of legality arose because, in 1977, Congress passed the Foreign Intelligence Surveillance Act (or FISA). The law prohibited national security wiretapping without a warrant issued by a special super-secret court (except for short emergency periods).)

So the thrust of the article was about the Administration’s position that a president has the right to violate a law—and to do so secretly. Surely, that is a matter of great importance in a constitutional democracy.

Schoenfeld notes the existence of FISA but misstates its purpose. FISA was not designed to “facilitate evidence gathering for prosecution.” Instead, FISA covered intelligence gathering relating to “terrorism” and “espionage.” It had different procedures—including more secrecy—than wiretapping in investigating ordinary crimes.

The FISA court almost always had approved requests for warrants—although the need to seek warrants probably made intelligence officers more careful. Moreover, Congress had shown a willingness to update FISA to deal with changes in the way messages are transmitted electronically. But, as Schoenfeld correctly concludes, the Bush Administration “nonetheless rejected this idea,” for “doctrinal” reasons. Schoenfeld explains that the White House, led in his telling by David Addington, Vice President Cheney’s counsel, believed FISA had invaded what Addington asserted was the President’s exclusive power to decide—secretly, and with no warrant requirements or other checks—who should be wiretapped.

Then Schoenfeld goes on to “assume” the NSA’s warrantless wiretapping violated the law—surely thereby undermining his case against the Times. But, he argues, “there were ample precedents for a president to bend or break the law when facing a supreme national emergency like the one the United States was facing after 9/11.” The two examples given are FDR’s destroyer deal with England (“an unadorned violation of the Neutrality Act”), and Lincoln’s suspension of habeas corpus (“usurping Congress’s power under the Constitution.”). But Schoenfeld here misses another key point. Both Lincoln and FDR acted in the open. Bush-Cheney did not.

And that is what the Times story was about: a secret program that violated a statute. Moreover, the constitutionality of the program could only be defended by a secret opinion by the Justice Department’s John Yoo.[10] This opinion purported to be the law, yet the Congress, the public and the legal profession were not permitted to know—or to critique—this secret law.[11] This too merited the attention of the media.

Moreover, the article did not undermine the effort against al Qaeda in any meaningful way. Thus, the article was not about, for example, how NSA picks targets, or what key words it might use to decide which communications to review more closely.

Nevertheless, before publication, President Bush told the Times, at a White House meeting, that if it went ahead with the story and another Al-Qaeda attack ensued “‘there will be blood on your hands.’” (Perhaps between earlier drafts and publication details like key words were deleted.) But, as Schoenfeld himself notes, the Administration never spelled out in a “precise way the nature of the harm.” However, says Schoenfeld, “it is not difficult to imagine that a highly publicized report indicating that the NSA could readily tap into calls from, say, Islamabad to Detroit, might cause some Al-Qaeda communications to dry up.” This is much too loose. For, under the existing FISA warrant system, there also could be taps into calls “from Islamabad to Detroit,” which would be approved by a secret court order.

Schoenfeld’s prosecution theory is breathtaking in its breadth. Isn’t secretly ignoring the law and the implications for American values precisely what ought to be debated in the Congress, in the press, and among the public? Schoenfeld implicitly seeks to trump this question by relying on another American value: representative democracy itself. Schoenfeld set this up by characterizing Ellsberg’s leak as an “assault on democratic self-governance.” “For better or worse the American people in those years had elected Kennedy, Johnson, and Nixon; they had acted at the ballot box to make their leadership and policy preferences clear, including preferences about secrecy.” Again truly breathtaking. Surely, no voter made “clear” a preference for the secret use of “monarchial” prerogatives to ignore the law. Yes, the public knew there was a classification system. But classification stamps are widely known to be over-used. And Schoenfeld is far too fair to argue that just because a classified document is published, a crime was committed by the publisher.

Let us now hark back to Schoenfeld’s tut tut at Times editor Bill Keller’s contention that the “people who invented this country” would have blessed publication of the warrantless wiretapping article. If one takes Keller as suggesting that the Founders would have approved publication of all secrets, it surely is correct to criticize Keller’s use of history. But not so if the focus is on what the article actually was about. For, having just revolted against monarchial arrogance, the Founders would surely have blessed a story exposing a president’s secret claim of power to violate a law.[12]

The Times got at fundamental questions in a constitutional democracy. Just as the press, at its best, should do.

* * *

This last section of this review is quite critical of Schoenfeld’s case against the Times. But, Schoenfeld is, in general, an unusually fair writer. He does recognize weaknesses. And he does recognize the press’s “essential checking role” on the government, conceding that this “checking role, if it is to be more than a charade, must extend, as it now does, into the inner working of the national security apparatus where secrecy is the coin of the realm.”

Schoenfeld’s debate with himself fairly sets up a debate for the public to engage in. The book is well worth reading.

[1] Fritz Schwarz is Chief Counsel of the Brennan Center and the author of Unchecked and Unbalanced: Presidential Power in a Time of Terror with Aziz Huq (The New Press, 2007).

[2] See 418 U.S. 683 (1974). For critiques of the Supreme Court’s use of the Constitutional Convention, see Eric Lane, Frederick A. O. Schwarz, Jr., and Emily Berman, “Too Big a Canon in the President’s Arsenal: Another Look at United States v. Nixon,” George Mason Law Review, Vol. 17, No. 3, Spring 2010, at pp 737-788; and Frederick A. O. Schwarz, Jr., “Harm to the Nation from Excessive Executive Branch Secrecy,” White House Studies 10, issue 2 (2010): forthcoming.

[3] For a useful history of McCormick, see Richard Norton Smith, The Colonel: the Life and Legend of Robert R. McCormick (Houghton Miffin, 1997).

[4] For secrecy and the atomic bomb, see Robert S. Norris, Racing for the Bomb: General Leslie R. Groves, The Manhattan Project’s Indispensable Man (Steerforth Press, 2002); Daniel Patrick Moynihan, Secrecy: The American Experience (Yale University Press, 1998), particularly at Chapter 5 “The Bomb,” pp 135-154; Gary Wills, Bomb Power: The Modern Presidency and the National Security State (The Penguin Press, 2010). Bomb Power was recently discussed at Just Books: see “Fallout Zone: The Bomb and What It Did to American Democracy,” “Eric Alterman Talks with Pulitzer Prize Winning Author Gary Wills About His New Book, Bomb Power” (4/02/10), http//www.brennancenter.org/blogs/justbooks/category/garrywills/. In my view, Bomb Power does not reach the heights of the rest of Gary Wills’ remarkable writing, though Wills’ interview in Just Books does.

[5] The conventional wisdom that Harry Truman knew absolutely nothing about the bomb before he became president is wrong. As a Senator, Truman ran a major investigation of wartime government contracting during which Truman came upon information about “huge, unexplained expenditures for something identified only as the Manhattan Project.” He was twice called off from exploration by Secretary of War Stimson. See David McCullough, Truman (Simon & Schuster, 1992), at pp 289-291.

[6] For discussion of Cold War relationships between the CIA and United States media, see Church Committee, Final Report, Book I, “Foreign and Military Intelligence,” at pp 191-201. Harrison E. Salisbury’s Without Fear or Favor: An Uncompromising Look at The New York Times, (Times Books, 1980) has a good deal of information about the relationships between the Times and the CIA. Salisbury’s book is nuanced: there were relationships—sometimes benefiting both sides; the Times decided not to publish a number of stories because of perceived harm to the national interest, some on its own and some at the urging of the White House or the CIA; in 1966, the Times published several articles criticizing the CIA which was, according to Salisbury, “The first, and for years the only, extended newspaper examination of the CIA.” (p.528) In a footnote, Salisbury explains the “lack of mention” in those articles of the “newspaper-CIA connection” as being due to the then Editor of the Times’ “long-standing bias against mentioning reporters in the news.” (p. 527) This explanation struck me as falling short of Salisbury’s generally fair and nuanced treatment.

[7] A lively recent book about Ramparts is Peter Richardson’s A Bomb In Every Issue: How The Short, Unruly Life of Ramparts Magazine Changed America (The New Press, 2009). An enormous amount has been written about Ellsberg and the Pentagon Papers. I found David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case (University of California Press, 1996) (paperback edition), particularly useful on the legal aspects of the story, including the government’s difficulty in proving harm. Ellsberg’s own writing (e.g., Secrets: A Memoir of Vietnam and the Pentagon Papers (Penguin Books, 2003) and his interviews (e.g., “Ellsberg Talks: Why he leaked the Pentagon Papers,” Look, October 5, 1971; and a CBS interview by Walter Cronkite (see Ellsberg, Secrets, at pp 400-402)) are candid and revealing.

[8] See, e.g., Frederick A.O. Schwarz, Jr. and Aziz Z. Huq, Unchecked and Unbalanced: Presidential Power in a Time of Terror (The New Press, 2007), at Chapter 2, “Revelations of the Church Committee”; and Frederick A.O. Schwarz, Jr., “Intelligence Activities and the Rights of Americans,” The Record of the Association of the Bar of the City of New York (January/February 1977), pp. 43-52, at p. 49.

[9] Schoenfeld’s case against the Times covers three articles: “Bush Lets U.S. Spy on Callers Without Courts,” December 16, 2005; “Spy Agency Mined Vast Data Trove, Officials Report,” December 24, 2005; and “Bank Data Sifted in Secret by U.S. to Block Terror,” June 23, 2006. Necessary Secrets and this review devote most attention to the first article.

The second (December 24) article was most controversial for revealing the cooperation of major telecommunication companies, and for stating that wholly international communications were routed through “switches” at company facilities in the United States. This second fact had apparently been withheld from the first article at the request of the Bush Administration. But after the first article, and before the second, Congressional leaders, including Senator Bob Graham on CNN, revealed this important and valuable secret.

Dispatch from the Justice Department

2010-08-05T10:32:28+00:00

by Laurence Tribe

My long life in the relatively quiet groves of academe, in the tree-lined streets of Cambridge, Massachusetts, was a calm one compared to life inside the Beltway. The perspective from that privileged perch was shattered when I began to see the broader view from inside the Justice Department, a view that reaches into every nook and cranny of our country. In my new job as Senior Counselor for Access to Justice, I have come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment.

Only five months into the job, I still view with awe the sign over the door to my office that reads, “Access to Justice.” More than a few folks who have come to visit have paused to have their pictures taken – not with me, mind you, but with that sign. But even after these few months, my staff and I already sense the danger of unrealistic expectations. We worry, as do many expert observers, that the system is too badly broken in too many ways to be susceptible to any “quick fix,” our state and federal budgets too strained to provide the resources so desperately needed, injustice too deeply woven into the system’s very structure for piecemeal reforms to make much of a dent. Or is it?

Ours is supposed to be a system that levels the playing field by meting out justice without regard to wealth or class or race, a system that lives up to the promise emblazoned in marble on our Supreme Court, “EQUAL JUSTICE UNDER LAW.” But as we know all too well, far too many of our citizens find instead a system in which the deck is stacked in favor of those who already have the most: in favor of the wealthy and against those already disadvantaged or victimized by the more powerful. There’s no reason to mince words: Not only the poor but members of the shrinking middle class find a system that is confusing, difficult to navigate, challenging to the point of inaccessibility for anybody who can’t afford the best lawyers, and ridiculously expensive for those in a position to pay the going rate.

Consider the Burger family in Michigan, a state that permits non-judicial foreclosure. The Burgers bought a four-bedroom bungalow in 1997 for just under $39,000. In January 2009, they inadvertently sent a money order that was 7 cents short of what they owed, and they were late making February’s payment as well. They caught up by April, which was amazing considering that they lost their 10-month-old daughter in a household accident that same month. According to the family, the bank sought to foreclose anyway, giving them a choice: Pay $8,390 to reinstate the mortgage or lose their home. The Burgers didn’t have the money, couldn’t afford a lawyer, and given Michigan’s laws weren’t afforded any court intervention or oversight, so they lost the only house that their four living children, all 12 years old and younger, had ever known.

But the unredeemed imbalance of power and wealth are not the only viruses infecting our legal system. Equally detrimental, though less visible, is the hydra-headed monster of too many people to be served effectively and – for lack of a better word to describe it – the punitive urge, an appetite for imprisonment that ignores the veritable mountain of evidence which shows that alternatives to incarceration are often more effective at reducing recidivism--while also less costly. All too often, the systems that rely on lengthy incarceration as the only available criminal sanction suffer from crushing caseloads and an inability or, I hate to say, unwillingness to provide the legal assistance needed to provide meaningful, adequate defense. Though neither of these forces necessarily originates from any ill intent, their combination creates waste, havoc, and confusion and leaves the system weakened and the participants on both sides of the bench disillusioned and discouraged.

Nobody who works within the legal system enjoys confronting these problems – they cast a dark shadow over a system in which we deeply believe and to which we have devoted our careers. But confront them we must if we are to combat them and redress their pernicious effects. More than 95 percent of all cases in this country are filed in state courts. Just to put things into perspective, it helps to recall that slightly under 280,000 civil cases of all kinds were commenced in federal district courts in 2007 – compared to nearly 18 million civil cases in the courts of our 50 states. The federal system saw over 66,000 new criminal cases filed in 2007, a substantial number to be sure, but nowhere near the 21 million plus that originated in state courts.

In the face of this staggering burden, the problems facing our state judicial systems can only be described as deplorable. The court systems in 28 states had hiring freezes in FY 2010, 13 states froze court staff salaries, six states mandated court furloughs, six states closed courtrooms – one day each month for all California courts. Los Angeles County alone has lost over $130 million of its court budget, and hundreds and even thousands of court employees are being laid off from California to Florida to New Hampshire. And judicial pay, adjusted for inflation, has fallen nearly 24 percent over the past 40 years while the average U.S. worker’s wages have risen nearly 18 percent.

Because of bulging criminal dockets and huge pro se backlogs, all made worse by the faltering economy, it’s becoming increasingly difficult for business litigants and others who are embroiled in civil disputes ranging from consumer fraud to family matters to get courtrooms for trial or to have trials, especially jury trials, scheduled in a timely way – often, they wait years to get their day in court. It was Clause 40 of Magna Carta that proclaimed, "To no one will we sell, to no one will we refuse or delay, right or justice." Justice that must depend on the purse, or justice so long delayed that it is in essence denied, does not deserve the name.

For the privileged litigants who can afford it, the natural response to a denial of justice in the public courtrooms of our nation is to take their business to private judges and mediators, operating outside the watchful gaze of the public and beyond the effective reach of the rule of law. The harm that results from that private response is experienced as well in the public sphere, where adjudication conducted out of the public’s sight mystifies instead of educating, depriving democracy of one of its essential wellsprings, that of seeing justice done.

For those litigants who cannot afford that private alternative, the natural response to a denial of public justice is more troublesome still. They must either suffer in alienated silence or take the law into their own hands. Judy Norman, the North Carolina woman whose story and trial are studied by many first-year students in their criminal law courses, tragically exemplifies that response. For 25 years, Ms. Norman was psychologically and physically abused, beaten by her husband, and forced into prostitution. The state rebuffed her attempts to seek counseling and welfare benefits, and the police refused to take action unless she filed a formal complaint, which she was too afraid to do. Because she thought her husband was “invulnerable to the law,” she finally shot and killed him in his sleep.

The human rights activist Gary Haugen, founder and director of International Justice Mission, has documented the way in which wealthy and powerful elites in third world countries with dysfunctional public justice systems often circumvent those systems with workarounds that submit their controversies to private dispute resolution, leaving the poor, who of course can afford no such recourse, to depend on the clogged and at times corrupt public courts. That leads to a vicious cycle of cynicism and disaffection in which the system’s democratic legitimacy, the very foundation of its capacity to articulate and enforce the rule of law, disintegrates. And that in turn leads increasing numbers to flout the law, to resort to self-help, or to give up altogether, eroding the traditional claim of the judicial branch to a share of public resources sufficient to perform its mission with competence and integrity. In the meantime, the powerful constituencies that once treated the public courts as their arbiters of last resort develop a diminishing stake in keeping the public judicial system afloat.

I hasten to add that this picture of what sometimes happens abroad stands in stark contrast to the judicial systems over which you preside. We have ample reason to be proud of the integrity and efficacy of American courts, both state and federal. But to say that is not to condone indifference to the early warnings of disintegration.

The magnitude of the problem tempts one to reach for sweeping solutions in some unifying vision of “access to justice” writ large, but the diverse and multifaceted character of the problem resists reduction to any grand and fully coherent theme conveniently captured in a simple slogan. Once one recognizes the perils of rigidly idealistic thinking – something that has from time to time plagued everyone in our “access to justice” office – one comes to a recognition that what is perhaps needed more than an inspiring but abstract and utopian call for a thousand-fold increase in funding is a series of tangible, achievable reforms that will make state courts better at what they do and more engaged in making law and legal remedies accessible to all.

Before I propose three sets of tangible, achievable reforms, let me address an overriding concern that many express with the very idea of active judicial leadership. It is that judges should be neutrals, not participants. They should be objective. They need to remain above the fray. People don’t agree on a definition of “judicial activism” but, in a riff on Potter Stewart’s definition of hard core pornography, they “know it when they see it.” And, if they affix that label to it, they know they don’t like it. But whatever one’s notion of impermissible approaches to judging, there is a basic and often ignored difference between judicial neutrality and judicial inactivity, between judicial objectivity and judicial passivity. Perhaps the greatest image we can conjure of a wise judge is that of Solomon. We all remember his creative pre-DNA-test solution to the problem of adjudicating the contested issue of maternity between two women making competing parental claims to the same infant. The wise king’s proposed solution, which he sprang on the women when he suggested splitting the baby in two while he watched the reactions of both claimants to motherhood, was the very essence of neutrality and objectivity. But it was hardly passive! It was as active as all get-out. Solomon’s wisdom sprang from making justice an active verb.

One inspiring example of the “good” judicial activism is taking place in Philadelphia, where a trial judge named Annette Rizzo launched an innovative mortgage mediation project. Judge Rizzo was initially asked by a particularly progressive sheriff to issue an area-wide moratorium on foreclosure sales, which were ravaging Philadelphia neighborhoods. Judge Rizzo, taking a leaf out of John Marshall’s book, declined to issue that specific relief – which would undoubtedly have garnered her the “bad” judicial activist label – and instead took the opportunity literally to restructure the foreclosure system in Philadelphia. She issued an order that no foreclosure sale could win judicial approval before the lender had at least entered into good-faith mediation with the homeowner, aided by a state-funded housing counselor. The mayor’s office got on board, the relevant stakeholders (including the lenders) offered input, and the program was off and running. My staff and I paid a visit to Judge Rizzo’s courtroom and witnessed the program, which has successfully kept hundreds of families in their homes and permitted many others to achieve more dignified and graceful exits than would otherwise have been possible.

Important reform efforts have also been initiated by state supreme court justices, as with the significant indigent defense reform effort spurred by the Nevada Supreme Court, which issued an order in 2008 calling for a completely state-funded Public Defender system and a permanent statewide commission on indigent defense. Although the Nevada reform effort is ongoing and there is still much work to be done, that state’s high court heroically chose to address systemic deficiencies in its system for fulfilling the obligation imposed by the Sixth Amendment under Gideon – and the promise of equal justice made by Gideon – without being asked to do so in a specific case. Of course, once asked to address the question of systemic deprivation of the protections that Gideon affords, it takes just as heroic a court to answer the call, as the New York Court of Appeals recently did under the visionary leadership of its Chief, Jonathan Lippman, in permitting the plaintiffs’ lawsuit to go forward in Hurrell-Harring v. State of New York.

I would urge every state’s highest court, led by every state’s chief justice, to establish an exploratory committee or task force with the goal of surveying the performance and evaluating the adequacy of the way your state is discharging its federal constitutional duty under Gideon. Judicial leadership of the sort shown in Nevada and New York and elsewhere is necessary if Gideon’s promise is to become more than what Robert Jackson once called a “promise to the ear to be broken to the hope, like a munificent bequest in a pauper’s will.”

Now, let me turn to the first of three areas of possible reform: juvenile justice. Let’s make sure that what happened in Luzerne County, Pennsylvania between 2003 and 2008 never happens again. As many readers know, here thousands of kids waived counsel and accepted pleas – in a system designed so that judges could receive kickbacks for placing children in a residential facility. The complaint alleged that none of the youth without counsel who appeared before a judge and pleaded guilty even had a colloquy about the waiver of counsel or about pleading guilty. They went to a hearing and in a matter of moments disappeared in shackles and handcuffs, for crimes as minor as stealing a four-ounce jar of nutmeg. Now of course the Pennsylvania Supreme Court vacated some 6,500 adjudications and consent decrees, expunged the convictions, and dismissed all cases with prejudice.

The primary goal of the juveniles and their attorneys in Luzerne County was relief in their individual cases, but state court judges can decide to use the lessons from that case to institute systemic change, just as Annette Rizzo took it upon herself to do in Philadelphia.

When we were juveniles, there was an ethos that everyone was out to help the kids, so issues like waiver of counsel weren’t really important. Today, confronted with situations like Luzerne County, we know better. The consequences of juvenile adjudications are serious and long term; the lack of representation can reshape a child’s entire life. Being found guilty can mean expulsion from school, exclusion from the job market, eviction from public housing, and exclusion from the opportunity to enlist in the military. It can affect immigration status. This is serious stuff.

And because it is so very serious, it’s critical that our state chief justices play a major leadership role. They can begin by protecting the right to counsel. The best way to do that is to prohibit the judicial acceptance of counsel waivers in your state by juveniles who have not at least received the advice of an attorney about their options and about the consequences of waiving such an important right. Many state supreme courts have adopted such a rule, including several in the past few years. A few states do not accept a waiver of counsel from juveniles under any circumstances. Every jurisdiction in the country should adopt a rule that at the very least requires consultation with an attorney prior to waiver of counsel.

We know from careful national studies that juveniles who lack counsel are much more likely to plead guilty without offering any defense or mitigating evidence. And without any credible defense, those young people are far more likely to end up in detention or incarceration, where they’re much more likely to be exposed to assault or sexual abuse, much more vulnerable to suicide, and far more likely to commit further crimes after their release. You, as our chief justices, can make a difference. Every child in delinquency proceedings should have access to justice via a right to counsel at every important step of the way: before a judicial determination regarding detention, and during probation interviews, pre-trial motions and hearings, adjudications and dispositions, determination of placement, and appeals.

Beyond waiver, it is time for the states to focus on the entire juvenile system, which has changed so much and yet receives so little systematic attention. We should have Blue Ribbon Commission on juvenile cases in every state, to find out the facts on waiver of counsel, on youth charged in adult court either directly or after transfer from juvenile proceedings, on plea and caseload rates, the qualifications of youth counsel, the collateral consequences for youth of delinquency adjudications and adult criminal convictions, and fees. Fees are important. Juveniles and their families – often poor families – often have to pay for detention, restitution, and victim funds. The National Juvenile Defender Center told our office about a 19-year-old college student who was brought into court in handcuffs because she had not paid fees that had been assessed against her when she was a child. She was held until she agreed to a payment plan.

Florida, Massachusetts, New York, and Washington, have eliminated the indiscriminate shackling of youth in delinquency proceedings. And the rest of the states should follow suit. Now is the time.

A second area in which we can make a difference involves the removal of artificial and often enormously counterproductive obstacles to pro bono representation for limited purposes (so-called “unbundled representation”), pro bono lawyering by attorneys licensed in jurisdictions other than your own, and more meaningful self-representation.

No substantial improvement in the delivery of needed civil legal services is likely unless we can find a way to stimulate more – and better designed and supervised – pro bono activity. It is difficult enough to find capable, well-trained lawyers who are willing to dedicate the time to significant pro bono work, so we simply cannot afford to cling to antiquated rules that, in a misguided application of ethical norms, artificially inhibit willing attorneys’ ability to actually perform pro bono services ably and with integrity.

In particular, there are several rules we should support:

Number One: all states should permit discrete task representation. Roughly 40 states have adopted the ABA’s Model Rule 1.2(c), or something similar, which permits pro bono attorneys to enter into representation agreements of expressly limited scope. These rules allow such attorneys to perform what are often short and simple tasks without taking on the duties and limitations that attend more classic full-scale attorney-client relationships. And because rules like 1.2(c) permit discrete task representation only where reasonable under the circumstances and after informed consent by the client, there is little or no downside.

Number Two: we should sensibly relax conflict rules for pro bono attorneys. Historically, too many well-intentioned and ethically alert attorneys were prevented from rendering needed services—even when those services were as simple as filling out a request for mediation regarding a client’s pending foreclosure—just because their firms had represented some financial or other institution on a vaguely related matter that had an attenuated theoretical interest in the issue at hand. Courts should not require pro bono attorneys who are providing short-term services with no expectation of continuing representation to screen systematically for such conflicts. Indeed, some states have gone even further – Washington, for example, permits pro bono attorneys to engage in short-term pro bono representation, subject to certain reasonable safeguards, even when they know of a lurking conflict.

Number Three: we should examine state rules of practice as they impact pro se litigants. I appreciate the difficulties that folks who can’t afford lawyers pose to states dockets and courtrooms, but as we embrace technology and form simplification we’ll be in dire need of clear rules that govern how court staff and non-lawyers may guide prospective litigants through the process of filling out self-help forms. I realize that unauthorized practice of law rules aren’t a popular topic of conversation around courthouse water coolers, but we must not inhibit the ability of pro se litigants to seek ministerial help in addressing issues as critical as child custody and housing simply because our UPL rules have not caught up with our reality.

In addition to the juvenile-justice and pro bono reforms, a third initiative that I urge is the creation – and, for those 24 states (and the District of Columbia) that have already created it, the care and feeding – of an Access to Justice Commission, whether by that or some other name, that embodies a sustainable institutional commitment to grading the state’s legal system in terms of how well or poorly it is delivering justice to the state’s people. Such commissions, typically created by supreme court rule or order, are deliberately designed to include judges, bar members, civil legal aid providers, representatives of law schools and, in some instances, members of the state’s executive and legislative branches. And they have achieved some remarkable results.

In California, the Access to Justice Commission secured an annual $10 million appropriation from the state legislature for civil legal services, and deserves much of the credit for the state legislature’s enactment of the groundbreaking Sargent Shriver Civil Counsel Act, which establishes civil Gideon pilot projects that will begin next year.

In Washington State, the access-to-justice commission helped establish the Office of Civil Legal Aid in 2006 as an independent agency within the judicial branch, and in addition to increasing civil legal aid from $6.6 million in 2005 to over $11 million just two years later, it played a key role in implementing rule changes to facilitate unbundled legal services and increase cy pres funding for legal aid.

The Texas Access to Justice Commission has approached funding issues creatively and, in addition to securing $2.5 million from the Attorney General’s budget for legal services for victims of crime in 2001, has helped funnel to legal aid offices fees collected from Texas bar members and from out-of-state lawyers appearing pro hac vice. The establishment of statewide Access to Justice Commissions has been called one of the most important justice-related developments in the past decade, and my office fully agrees.

The unifying theme of the three categories of action I am urging is not to be found in any ethereal abstraction. It is, quite simply, that these steps would manifestly improve access to justice in your states, and, they are demonstrably achievable.

And, if the search for a universal solvent for the intractable problems of justice can be paralyzing, the commitment to these achievable reforms can be empowering. So please don’t take the view that the three categories of changes I’ve outlined are so incremental, the success I’m aiming toward so far removed in time, that there’s no point in rushing to get started. To the contrary, the longer it takes to get there, the more crucial it is to begin without delay. As New Orleans Mayor Mitch Landrieu said in his first State of City address earlier this month, “There’s an old saying that the best time to plant an oak tree was 30 years ago. The second best time is now.”

I end with this thought: The trajectory of the moral universe will indeed bend toward justice, as Martin Luther King famously dreamed, only if we act to make the dream real. Unable to realize that goal in a single leap, we must not despair of realizing it step by step. The benefits of each step may seem small – but, as Richard Feynman once described the trajectory of the photon, each little arrow bent to a particular degree becomes in the aggregate a ray at the speed of light, lighting everything in its path. That ray can light our nation and the world if we all do our part.

Laurence Tribe is the Carl M. Loeb University Professor at Harvard University, and is Senior Counselor for Access to Justice in the Department of Justice.

This article was adapted, with permission, from Professor Tribe's Keynote Remarks at the Annual Conference of Chief Justices, July 26, 2010

Author Talk With Paul Farmer

2010-08-04T10:23:30+00:00

In his new book -- Partner to the Poor: A Paul Farmer Reader -- Paul Farmer, acclaimed 'saint,' chronicles his true-life, world-saving adventures.

Dr. Farmer talks with Diana Silver, Ph.D., about his work and the new book.

DS: Let’s begin with Haiti. How is the relief effort going?

PF: A lot of energy and resources went into immediate rescue and relief efforts -- with predictable results: not many people could be rescued. This is not atypical of a disaster of this magnitude.

The reconstruction efforts are slower. There are fewer resources. It is taking a while to get things going. Though there has been enormous effort to coordinate a better response, we can’t give ourselves good marks yet on reconstruction. For one thing, the number of people in camps with displaced homes continues to grow, not to shrink. That’s the biggest problem: shelter and basic services for people who have lost their homes, or are afraid to return to them. We haven’t been able to help much in this regard.

DS: Is there -- anywhere in this difficult situation -- cause for hope?

PF: Reconstruction is slower than what I/we hoped. This was a catastrophe on a nearly unprecedented scale. Some think as many as 20% of all federal employees were killed; all federal buildings destroyed. So how quickly can we expect reconstruction? But there are glimmers of hope – including the creation of the Interim Committee for the Reconstruction of Haiti, which had its first meeting and is designed to green-light a broad range of solid projects.

DS: Let’s talk about your new book, which is a gift to professors, because it is so beautifully organized. It’s organized dramatically, rather than chronologically. Can you describe the dramatic, organizing themes and say a bit about why you structured the book in the way that you did?

PF: Some of the early pieces cover the anthropology of epidemic disease and focus on Haiti, where I’ve worked for the last 28 years. It moves more broadly to some of the issues that animated the first years of my work, but focuses more explicitly on basic social and economic rights for people living in poverty. By basic rights, I mean the rights to water, health care, education and shelter. The issue of sexual violence runs through the book. It’s a very difficult issue for physicians. There’s a focus on social forces that put some people at risk for illness or other bad outcomes. Racism is an example -- as is gender inequality.

DS: Structural violence is a loaded term. I imagine you use it intentionally. Could you speak elaborate?

PF: It is not an original concept. Many have found it to be too loaded. I began using the term to convey the sentiments and the experience of people I worked with in Haiti, in Peru, later in Africa. These people experienced every day life as violent and used loaded terms to describe their experience.

Let me give you an example. A woman in rural Haiti has many children and spends every waking hour in a struggle for food, for wood to cook with, and for water; she experiences this as a kind of violence done to her. I think it’s better for those in my position to echo her view, not just her anger, but also the sense of injustice with which she regards her experience I’m not wedded to the concept, but it is useful.

DS: In the section on structural violence in the book, you introduce the idea that health is a human right. And, you critique human rights groups that adopt political neutral positions or focus on civil rights, rather than human rights. Is this a fair description?

PF: It is an insider-loyalist critique. A number of prominent rights groups advocate for political and civil rights. These are important struggles. But there are other rights: the right to health care, the right to clean water, the right to education. These are the rights I consistently heard about in places like Haiti. And very often these rights are not much discussed in mainstream health organizations. So, yes, mine is an insider loyalist critique of an overly narrow focus on civil- and political rights.

DS: You have been critical of neoliberalism and some of its solutions to some of these problems. Can you say a bit about this?

PF: There are broad economic policies that favor social safety nets and others that really don’t. If you look back over discussions on various economic disasters in the country -- like the Great Depression -- this was a very vibrant topic of discussion. FDR and his cabinet members were very explicit about the need to think hard about the ill fed, ill housed and unemployed.

This is something Americans ought to be proud of; it’s part of our history too, just as is the more unfettered growth period that can sometimes collapse as we’ve seen with the recent economic set backs. It is important to say that we need to fight more to make sure that everyone has a right to basic health care. We are not going to see this happen under a lot of these more neoliberal economic policies. Another way of putting this: we need to focus on social protection as it benefits our physical and emotional well being, and also strengthens the economic well being of the public.

DS: Some advocate for neo-liberalism on pragmatic grounds. But your critique of neo-liberalism is also made on pragmatic grounds, yes?

PF: If you find 10,000 NGOs, as you do in Haiti, then you know that they are filling a space left by others. The others, in this case, are the public sector, the state itself. I work at an NGO, as a volunteer for Partners of Health. And I work for a private University. (I’m a professor at Harvard, that’s what I do for a living.) So, this is not an attack on the private sector of NGO -- after all, I represent an NGO. But, as NGO’s and non-State actors, we must believe in some basic social safety net to strengthen the public sector’s ability to provide basic services. This is a perfectly fine primary goal for an organization like Partners In Health.

Some people think of Rwanda as a place in which a sort-of neo-liberal economic policy is in place. But, if you look at the Rwanda budget, it is pretty shrunken in health care and education. Yes, there is strong encouragement from the private sector, including direct foreign investment. We need this in Haiti. The question is, do we provide this at the expense of any basic right of the population? The answer is: No. This is not in the interests of pragmatists.

Before the earthquake there was very high unemployment in Haiti, and relentless migration to the cities resulted. There was little investment in public work, safety or education. And so there was a perfect, terrible storm, when something as awful as the January 12th quake hit. Haiti has been terribly vulnerable to natural disasters for many decades, because it has been deforested because people need charcoal. And there is no charcoal, because there has been no significant investment in alternative energy sources. Haiti is not alone in that regard. But, as the recent complex chain of events shows us, you can be absolutely pragmatic and still say, ‘hey, we can put in place some basic systems to protect people from the worst.’

Having a safety net for health care is the ultimate in pragmatism. It is not ideological to say that people need a basic safety net. Same for education. It has been shown again and again that a girl’s education is the best way to promote child survival. What could be more pragmatic than equitable education?

DS: Some of your work has challenged epidemiologists, and the public health community, to look at the impact of economic and political policies on health, and focus less narrowly on individual risks for disease. You've also challenged anthropologists to go beyond cultural factors in explaining behaviors that put people at risk, and to investigate the political and economic context. In these ways, you've been pushing both these disciplines to stretch beyond where they have focused much of their attention over the last fifty years. Was this your intent? And do you think you've had an impact on the disciplines as a whole?

PF: That was my intent. It is difficult to measure impact. For the public health community or epidemiologists, there is always some kind of blinder on any methodology or any kind of disciplinary approach. For anthropologists and public health specialists to be blinded in this way is particularly offensive because it is our job to re-socialize our understandings of phenomena.

Again, going back to Haiti, there is an earth quake at 4.33 on January 12th. It is a natural disaster and also a social disaster. It is the job of some disciplines to work hard to make all of this clear. Why? Because understanding claims of causality, how one thing causes the other, is important to any convention. Going back to medical language, to get both the prognosis and the prescription right, you need an accurate diagnosis. This emerges from a comprehensive examination of the history of the illness -- and all the data that we have is laboratory data and modern biomedicine. The underpinning of that critique of my colleagues in public health and anthropology is that we are not going to get the diagnosis correct if we don’t have an historically deep, geographically broad, view. By geographically broad, I mean that if you are looking at epidemic disease you can’t focus your attention on one administrative unit. Usually in the 20th century nation state, epidemics don’t remain local. There is a lot in the book about epidemics. They never stay local. They always get out of prisons and hospitals, and out of one state and into another.

Parochialism about place, just like parochialism about time, is detrimental if we want a full understanding of big social medical questions presented in Haiti and elsewhere around the world.

Paul Farmer is Professor of Social Medicine and the Chair of the Global Health and Social Medicine at Harvard Medical School.

Diana Silver is an assistant professor of public health at New York University's Steinhardt School of Culture, Education and Human Development

The Living Constitution

2010-08-04T10:03:32+00:00

by David Strauss

Anything Goes? The alternative to “Originalism” isn’t a loosey-goosey style of interpretation, but depends on common law and is based on precedent.

Originalism is a zombie idea. It has been dispatched a million times, but it keeps marching on. Like any good zombie, it mutates. Once it was the idea that “original intentions” govern the interpretation of the Constitution; then it became “original understandings;” now the au courant version is the “original public meanings” of the words of the Constitution. In each of its forms, the problems with originalism have been exposed, over and over. But it is still with us.

Why is that? There are many reasons, but one is captured by the politicians’ saying that you can’t beat somebody with nobody. What is the alternative to originalism? The usual answer is “living constitutionalism.” And the idea of a living constitution seems to mean, to many people, that judges can just make things up. Elena Kagan made it very clear in her confirmation hearings that she is no originalist. But when asked about “the idea of a living Constitution,” she remarked that “people associate” that idea “with . . .a kind of loosey-goosey style of interpretation in which anything goes, in which there are no constraints, in which judges can import their own personal views and preferences.” And, she added, “I most certainly do not agree with that.”

Kagan’s comment is fair, and revealing. The opponents of originalism have had a hard time explaining what their theory is. My book, called The Living Constitution, is an attempt to give that explanation. The argument of the book is that the alternative to originalism is not “anything goes” but a very familiar kind of law, one that antedates the Constitution itself: the common law, based on precedent. Constitutional principles develop through precedents and traditions, established by court decisions and, in important ways, by the actions of other institutions. The precedents are modified and occasionally overruled, but they determine the basic contours of the law. And like the common law, American constitutional law is influenced by judgments of fairness and social policy—but, again like the common law, only in ways that are constrained and limited by the precedents that have developed.

This is not to say that the text is irrelevant—far from it. On some matters, the text governs absolutely. That is why each state has two Senators, the President leaves office on January 20th of the year after an election, and so on. These are not trivial matters; they are far more important than many of the issues that are routinely litigated in court. And these issues are squarely settled by the text—that is why they are not litigated. Besides that, every constitutional principle, no matter how refined or elaborated by precedent, has to be connected, in some way, to the text. But constitutional law does develop and change over time—something originalists have a hard time explaining. And the principal way that constitutional law develops is not (as originalists would presumably say) by increasingly refined study of the precise wording of the text or by gaining new historical insights into the era in which the text was adopted. It is by the elaboration of precedents in a common-law-like way.

That is our living constitutional system. It is very far removed from “anything goes”—the centuries-long history of the common law of contract, tort, and property is evidence of just how constraining the common law can be. What’s more, it is impossible to understand how constitutional law has developed in the United States without seeing that it is, in important ways, a common law system. In the book, I discuss two of the most notable developments—Brown v. Board of Education, and the law of freedom of speech. Brown is famously hard to justify on originalist grounds, unless originalism is conceived in such an abstract way that it can justify anything. But there is a straightforward common law-like justification for Brown: by the time Brown was decided, the Court had, in a series of cases, chipped away at the principle of “separate but equal” to the point that there was almost nothing left. Brown was not a bolt from the blue but the last step in a line of cases of the kind that is characteristic of the common law.

The law of the First Amendment also presents a common law story. The complex body of law that protects free speech in the United States cannot simply be derived from the text of the First Amendment, which, in isolation, leaves many questions unanswered. It is also not about what the original understandings (or meanings, etc.), some of which are starkly inconsistent with what we take to be absolutely fixed principles today. (For example, at the time the First Amendment was adopted, it seems to have been understood that blasphemy could be outlawed and that “the freedom of speech” had nothing to do with defamation; and attitudes toward putting people in jail for criticizing the government were, by today’s standards, shockingly equivocal.) Instead, the current American constitutional law of free speech is the product of a trial-and-error process that took place over the course of the twentieth century. In that process, the courts—and people outside the courts—hammered out, in fits and starts, by trial and error, the elaborate principles that, today, we think of as “the First Amendment.”

This version of the living constitution is not inherently progressive or conservative. It is simply what our system is. There are well-established conservative and liberal principles of constitutional law that cannot simply be read off of the text of the Constitution and that find little or no support in what the Framers did—but that are firmly rooted in precedent. The great advantage of common law living constitutionalism is that—unlike orignalism—it is candid. It acknowledges that we have to make decisions for ourselves—albeit decisions rooted in what has gone before—instead of simply following orders handed down from the Framers. And it shows how, to quote Solicitor General Kagan again, “development of our constitutional law does indeed occur”—but in a way that does not amount to saying that anything goes.

David A. Strauss is a Professor of Law at the University of Chicago.

How I Ended up in Glenn Beck�s Line-of-Fire�

2010-06-03T02:05:22+00:00

And why it matters.

by Frances Fox Piven

Today I Googled “Cloward Piven crisis strategy” and got 27,700 hits. Then I Googled “Frances Fox Piven” and got 135,000 hits. I have been writing, teaching and doing politics for a very long time, but I have never gotten so much attention, and I want to tell you the story of what it is all about.

Early last February I received a call from someone who claimed he was a student at Western Michigan State University. His class, he said, was required to read my book Challenging Authority. So, to fulfill his term assignment, he wanted to interview me. This didn’t seem strange. I’m used to students who try to fill assignments with as little reading as possible and I was not eager to do the interview. I had just gotten out of the hospital after an auto accident and was a bit unsteady. But I also hate to say no to students, so I suggested we do the interview at my apartment, for only an hour, and then thought little of it.

A couple of weeks later clips from the interview showed up on the internet. I Googled the “student” and discovered that he was in fact an official of the Michigan Republican party and also the director of a small 501c4 devoted to attacking the Michigan teachers union. Now I was interested.

I Googled some more and discovered that I and my deceased husband, Richard Cloward, were being depicted as the central figures in a plan to foment crises that had led first to the creation of the National Welfare Rights Organization, then to ACORN, was somehow connected to George Soros, created the financial crisis, then brought Barack Obama to the presidency, and much more. (Recently Woodrow Wilson has been added to one of the diagrams, presumably because the roots of all of this trouble can be traced to the progressive movement.) This Cloward Piven crisis strategy had been featured on the Glenn Beck show, complete with fantastical diagrams, some 30-odd times, was also the subject of numerous right-wing blogs, and had even been the focus of a major address at the Tea Party convention.

Naturally, my students were on to this before I was, and they were delighted to have such a notorious and powerful professor. So, in a way, was I delighted. It was funny, just because it was so preposterous. The diagrams hinged on crazy connections, and the blogs were riddled with errors.

But there is also something serious going on here. There are lots of Americans who are ready to believe this and similar stories that single out particular people or groups, and make those real and palpable persons the villains in a narrative that explains vast political, cultural and economic changes in American society. What isn’t funny is that a lot of people discomfited by these changes — by changing family and sexual mores, by deindustrialization, by an African-American president — find the narrative convincing.

The story that Glenn Beck and others tell begins oddly enough with an article that Richard and I published in The Nation in 1966 with the title “A Strategy to End Poverty.” The article proposed a campaign to enroll eligible people in the welfare program. We knew from our work with Mobilization for Youth on the Lower East Side in New York City that the welfare department was turning many eligible people away, sometimes giving them bus tickets to go back south instead of processing their applications for benefits. We also learned from our research that this was a widespread practice, with the consequence that less than half of those who were eligible for welfare benefits were actually receiving them. So we tried to think through the consequences of a campaign for full coverage, including the fiscal and political troubles it would cause in the cities, and the policy responses of a Democratic federal government that depended on its big city base, including the increasingly militant poor minorities. We thought there was a good chance that such a welfare “crisis” in the cities would prompt a Democratic administration to intervene, federalizing the program to relieve fiscal pressures, and improving it to satisfy the minority poor. (In fact some of the categorical assistance programs were federalized with the creation of the Supplemental Security Income program in 1974.) Moreover, we could see no downside to the strategy because along the way desperately poor people got welfare, food stamps and Medicaid benefits. Of course, this was a considerably more modest strategy, and a strategy for reform rather than revolution, than Glenn Beck and his ilk perceive

Lest readers simply dismiss this sort of thing with a chuckle, I want to emphasize that slander campaigns of this sort can have serious consequences, and I don’t mean personal consequences for me. Of course, misleading people is of itself serious. But ACORN, the largest and most effective organization of poor and minority people in the country, was destroyed by this sort of campaign. One of the things that ACORN did was to register poor people to vote. A massive voter registration effort by ACORN in 2005 in the state of Florida succeeded in winning a big hike in the state minimum wage. That victory sparked a relentless series of attacks on ACORN as a criminal conspiracy to fraudulently register voters, attacks that were mindlessly echoed by the mainstream media, with the result that ACORN’s funding dried up.

I think the impulse to dismiss lunatic charges by the right in the hopes they will go away is a mistake. They aren’t going away because the attacks are effective. What we should do instead of ducking is rally to the defense of the individuals and groups that are under assault, and we should do that aggressively, proudly, even joyfully because we are standing with what is best in American politics, and especially with the social movements from below that have sometimes humanized our society. That is what drives the right crazy, and it is also what should make us proud.

Frances Fox Piven is a distinguished Professor of Political Science and Sociology at The Graduate Center, City University of New York, and the author of Challenging Authority: How Ordinary People Change America.

Author Talk With Linda Greenhouse

2010-06-03T01:56:18+00:00

Former New York Times Supreme Court reporter Linda Greenhouse talks about Roe vs. Wade, partisan politics, and the future of abortion rights.

interviewed by Nancy Northup

Nancy Northup: What surprised you when you went back and looked at the documents that bring the debates before Roe vs. Wade to life?

Linda Greenhouse: I was surprised by how relatively late in the process of reform the women’s movement jumped in. I assumed the second-wave feminist movement initiated the cause of abortion reform. But that wasn’t the case. The initial impulse came from public health concerns and, to some degree from the elite of the legal profession. Feminists were on a parallel, but, different track. They focused on economic equality and empowerment. It wasn’t until Betty Friedan made the fabulous speech in Chicago in 1969—which we excerpt—that the feminists made an overt connection between economic empowerment and women’s need to control their reproductive lives.. The meaning of “abortion” changed significantly over time, and, resonated differently within different communities. This is key to understanding what occurred both before, and after, Roe. It seems obvious once you say it, but, it sort of jumps out from the materials and I don’t think that’s been a point of much analytical focus before.

NN: Can you say more about the ways in which abortion has been understood in different communities?

LG: Yes. At first, abortion was presented as a public health issue. Back alley, illegal abortions were a significant cause of death and injury. Here was really a medical problem that needed to be fixed. But, as the sixties went on the abortion issue intersected with the growing power of the women’s movement, the Equal Rights Amendment, the Nixon presidency and Nixon’s re-election effort in 1972, and, the concept of abortion got mixed up with other elements of the social upheaval taking place. People came to understand, not incorrectly, that a right to abortion makes it possible for women to be in the world in a very different way. The debate over abortion became much more freighted; it came to involve far more than a debate over a particular surgical procedure, or, even a debate over ending a pregnancy as such. It came to stand for what one thought of the roles of women.

NN: The book aims to recreate the public conversation from which Roe emerged. How much has that conversation changed during the last forty years?

LG: Inevitably, we see the pre-Roe period through the lens of Roe. For example, we see the conflict within religious communities in terms of the Catholic Church and its opposition to abortion, the resources and ability it has to enter the public conversation in a very robust way, and get the idea the Catholic Church led opposition from other faith-based communities. This wasn’t the case, however, in the pre-Roe period. Something that surprised us—and I don’t claim Reva Siegal, my author, and I discovered it, but it was news to us— was the discovery that other religious communities, for instance the Evangelical communities, did not share the Catholic Community’s implacable opposition to abortion under all circumstances. They were open to the notion of ‘therapeutic abortion’ and recognized circumstances in which abortion, although problematic, would be morally acceptable, and, should be legal. This is one interesting example of how current assumptions aren’t historically correct.

NN: You also trace the issues in terms of partisan politics.

LG: Yes. A Gallup poll conducted in the summer of 1972 while the Supreme Court was getting ready for the second argument in Roe, asked ‘do you believe that abortion should be a matter solely between the woman and her doctor?’ The largest affirmative responses came from Republicans, and by a margin, I think of 68 percent. (Democrats also said yes, but by a smaller margin.) Party realignments occurred later.

NN: Are there notable similarities between the pre-Roe debate and today’s public debate about abortion?

LG: We reprint some very powerful anti-abortion arguments including a fascinating little book called Handbook on Abortion. It was written, by Dr. Jack Wilkie and his wife, in the form of questions and answers about abortion and Wilkie’s arguments are the same arguments the right-to-life community has been making ever since. They are very familiar -- even though this little book predates the real hardening of the wine. Dr. Wilkie self-published the book but it quickly circulated, has been translated into dozens of languages, has become the bible of the anti-abortion movement, and, is strikingly familiar today.

NN: Let’s talk about Roe itself. Did the decision cause the subsequent conflict, or, was the decision merely a symbol that emerged from public conflict about abortion?

LG: Reva Siegel, my co-author, and I don’t buy the notion that the Court started everything. On the other hand, I mentioned earlier the Gallup poll that indicated wide acceptance of the reform of the old abortion laws. We don’t know what the Courts made of that or what the Justices expected. We know they expected some controversy, but we don’t think they had any notion that there would be so much controversy, certainly not lasting to this very day, thirty-seven years later. So as I say, it is an ambiguous story. When I started covering the Court in ’78, there were already several post-Roe challenges to various obstacles to abortion access on the Court’s docket. The Roe mentality seemed solid on the Court. It seemed unlikely any of these challenges would be of more than marginal interest. Few people then would have imagined we would still be living with the aftermath of all this today.

NN: Commentators like Jeffery Rosen of The New Republic, argue abortion rights as a policy position, but think it would have been better if the Supreme Court had declined to recognize a Constitutional protection for abortion rights. What do you think? Might we have had less contentiousness about abortion if the Supreme Court had just stayed out of it?

LG: It’s a theoretically appealing, but historically inaccurate idea. Did the Court think that its decision reflected national consensus? Did the Court misread the public? We don’t really know the answers to those very intriguing questions. The historical record is clear that our electoral politics are not going to accomplish what Roe vs. Wade accomplished.

NN: Who is the audience for your book and how would you like it to be used?

LG: Ideally people on both sides of the debate will learn something about where we are. We specifically hoped that the college-age population will read it in their American Studies classes or Women’s Studies classes. We hope to reach both a general audience and specific academic audience.

NN: In the forward, you and Professor Siegel say your personal view is that a woman should be free to decide for herself, whether and when to bear children. It has been two years since you left your post at The New York Times. Have you been able to write and speak on your own position on the issue as opposed to the neutral journalistic position that you had for so many years?

LG: Yes. Now I’m free to say anything because I don’t have to write a regular opinion column for the Times website. It’s a different professional relationship to issues that I find fascinating.

NN: Was it very hard -- during the thirty years you were covering the Court -- to maintain the objectivity that you needed to have, particularly when you covered subjects like the Court’s treatment of abortion rights?

LG: Not really. I was a daily journalist for forty years. There are tools of the trade that reporters learn to deploy. I always had definite issues on the abortion issue; in the book, I wanted to come clean on this. The book is not a work of advocacy. So, no, I didn’t find it that difficult. Actually, I had much less of an idea of what was the right answer with respect to many of the issues that came before the Court. The Court deals with an awful lot of hard questions on which very smart people have disagreed; I was sometimes quite grateful that I didn’t have to reach my own decision, rather just report what other people were saying.

NN: Thirty-seven years after Roe vs. Wade the abortion battle rages on in the courts and the legislatures and in the media. Is there an end in sight?

LG: It’s hard to see an end in sight. Given the current efforts of the anti-abortion community, for instance, to require women seeking abortion to view ultrasound images of the fetus, and so on. I was just in Florida the other day and the legislature passed such a law and the question was, would the Governor veto it? There always seems to be something new to latch onto. And of course many of these efforts in the States are efforts not so much to change the hearts and minds of the State population, but to find a vehicle that the anti-abortion side might ride to the Supreme Court in the hopes the Court might take a different view of the matter. This is a long way of saying, no I don’t think the issue is going to go away.

NN: As a close Court observer, how far do you think the current Supreme Court might be willing to go in terms of restricting abortion rights?

LG: Three are four Justices who would uphold pretty much any restriction that comes across their screen. Chief Justice Roberts, Justice Alito, Justice Scalia, and Justice Thomas. So, that leaves us with a question mark about Justice Kennedy. Based on his opinion in Casey vs. Planned Parenthood in 1992, I think Justice Kennedy seems to be committed to the notion that there is a core right to abortion. I don’t see him changing his position on that. It is just a question of what he sees as an undue burden and whether or not that strikes other people as an undue or not. That is the unanswered question here.

Of course, we haven’t heard from Justice Sotomayor or from Solicitor General Kagan on this issue, but I’m assuming that their views will be much like the Justices that they are replacing. So, I’m counting them as the four on the other side, with Justice Kennedy in the middle.

NN: Very good. Thank you and Professor Siegel for putting together these materials. They bring to vivid life the public conversation that shaped debate before Roe vs. Wade. And as someone who works on this issue 24/7, I was surprised by much of what I read when I revisited these arguments and debates. The book is going to be an incredibly important contribution to the debate as both a social- and constitutional matter.

Linda Greenhouse, a Pulitzer Prize winning journalist, covered the Supreme Court for the New York Times for many years and now teaches at Yale.

Nancy Northup is the President of the Center for Reproductive Rights, a global human rights organization that uses constitutional and international law to secure women's reproductive freedom.

Rachael Maddow Tells Grads, “Given the Choice between Fame and Glory, Take Glory.”

2010-06-03T01:38:48+00:00

Given the Choice between Fame and Glory, Take Glory.

Rachel Maddow, Smith College’s commencement speaker tells grads:

Do not just for your own life, but for the life of your nation—that is still, for all its challenges and its flaws, in many ways the best hope on earth.

In June of 1900, a self righteous, by all accounts quite unpleasant woman in Kansas had a religious vision. Her name was Carry Nation. And years later when she wrote her autobiography in which she all but named herself a saint, she said that while she was praying in June 1900 and lamenting, weeping, trying to find a way to be a better Christian, she said that God spoke to her in a clear voice and directed her to go destroy saloons. God told her to leave Medicine Lodge, Kansas, and go to Kiowa, Kansas, and destroy any saloons she found there, and she did.

She stormed these turn-of-the-century bars, these saloons with their long mirrors, and she had a big rock and she used the rock to smash bottles of liquor — she just laid waste to these barrooms.

Turns out Carry Nation had a hankering for this. She lustily enjoyed destroying property and terrifying people.

She soon made both a habit and a career of it. She traveled all over: Kansas first, and ultimately all over the country, destroying barrooms. She first used a rock and then a hatchet. She adopted the hatchet as her symbol. She called her saloon smashings "hatchetations," which is probably the one really cool thing about Carry Nation: "hatchetations."

Carry sold these tiny pewter hatchet pins as fundraising souvenirs. You can buy them on eBay. I have one. It looks like a labrys though. It's a nice idea but different.

Carry Nation's fundraising was actually for herself so she could market herself as essentially a sideshow act, as a “saloon smasher,” and she had a traveling sideshow manager promoting this traveling saloon-smashing road show she did around the country.

As a person who has become not a little obsessed with Carry Nation, I have come to think of her as mostly an American huckster, just promoting herself. But she was also promoting her cause: temperance, outlawing drinking, prohibition. And that campaign worked – she was one of the reigning symbols of the Prohibition movement from when she started smashing saloons in 1900 to when she died in 1911. By 1917, the combined effort of activists like her and the women's temperance union had actually succeeded in passing an anti-booze amendment to the United States Constitution — as if we didn't have other things to do.

It passed overwhelmingly through both houses of Congress less than a year and a half later, ratified by two-thirds of the states; and, starting in 1920, the incredible stupid idea of Prohibition was the law of the land — and it was a disaster.

Alcoholism went up. Dozens and then hundreds and thousands of illegal drinking establishments opened up. Bootleggers ran the black market to end all black markets. A whole new variety of organized criminal activity blossomed.

With the massive surge of profits flowing through that criminal underworld, this country reached whole new levels of government corruption that puts anything we've got today to shame — except for maybe the Interior Department of the Bush administration.

It's not about the Bush administration — remember they put the Abramoff guy as the Number Two guy in charge of the Department of Interior and there was that one office where they were snorting meth off the toaster oven and the people who worked in the office regulating the oil industry were actually having affairs with oil industry lobbyists? So the Bush administration Interior Department maybe can compete.

And actually, when you think about it, there was that morning last summer when 44 people got arrested all at once in New Jersey on corruption, and then there's Rod Blagojevich — so alright maybe we can imagine what super corrupt criminal government looks like. But in Prohibition it was really bad.

In the Depression, the criminal economy that was a side effect of the Carry Nations of the world convincing us to ban booze — that criminal economy was big enough that it crowded out a lot of the real economy. Trying to recover from the Great Depression meant, in part, finding a means of stimulus spending that wouldn't just disappear into the gangster economy, which was quantitatively an actual competitor to the legitimate economy.

Now granted, we do remember some cool things from that era — flapper dresses, every drink you've ever had with orange juice because they needed something with a strong flavor to disguise the taste of the disgusting bathtub gin — but basically it was a huge public policy failure.

I'll give you just one more concrete example of how barbaric and stupid this time was in American public policy. Consider industrial alcohol. There's alcohol for drinking and then there's alcohol for solvents -- rubbing alcohol. People were so desperate to drink that they would sometimes drink industrial alcohol, or people in the wildly profitable business of bootlegging would steal or rip off industrial alcohol and then redistill it to make it vaguely drinkable.

The government decided during Prohibition that that must be stopped, and their genius idea to stop it was to poison the industrial alcohol. Deborah Blum wrote about this for Slate.com recently. The government took industrial alcohol and they added things like kerosene, gasoline, benzene, mercury salts, nicotine, ether formaldehyde, acetone. They would add known poisons to these things that they knew people wanted to drink and then people would still drink them and they would die. It's been estimated that as many as 10,000 people may have been killed by government actions in this way during Prohibition when the government decided to discourage people from doing things that people already knew was bad for them but they wanted to do it anyway.

Prohibition was really stupid on a million different levels. Finally after 13 long, dumb years, it was repealed in 1933, and then we as a country promptly set about forgetting we had ever done it.

I think it's important to remember Prohibition because enacting it was a huge disaster for our nation, but it was a personal triumph for Carry Nation.

I would like to offer the hypothesis on this beautiful graduation day that personal triumphs are overrated.

If you think about it, when Jack Abramoff got the White House to install his on-the-take, corrupt, patsy as the Number Two job at the Department of Interior thus leading to the snorting-meth-off-the-toaster-oven, sleeping-with-the-oil-lobbyist vibe at the Department of the Interior, that was a personal triumph for Jack Abramoff.

Someone at Yum Brands this year achieved their personal triumph by getting KFC to remove the bun from a cheese and bacon sandwich and replace that bun with pieces of fried chicken — the double-down sandwich-designer's personal triumph.

When the current president hit upon the strategy of co-opting his political opponent's wish list in order to get a climate bill passed this year, President Obama, adopting “Drill-Baby-Drill,” was lauded in the Beltway press as a political and personal triumph.

Someone invented the AMC Gremlin and got a car company to build it for nine years — that was a personal triumph.

There's a Tennessee businessman who has mass-marketed a legal means of charging 400 percent interest on something called "payday loans" despite laws against usury and loan-sharking in this country. He made so much money off of ripping off Americans that way that he built himself a full-scale college football stadium with lights and seating and a field house and everything in his backyard for his personal use, and he hires college football teams to play there for his own enjoyment, he markets himself as a great American personal triumph.

Al Capone rose from humble beginnings in Brooklyn to build a huge crime empire that essentially owned Chicago during Prohibition — a personal triumph.

All these people dream their dreams and work hard and achieve their dreams.

Some dreams are bad dreams.

Everybody always says around occasions like this: life is short. It might be. If it is for you, I'm sorry. I wish that was not the case. But I would caution against believing life is short and to live everyday as if it is your last as if you're ever only going to be roughly the age you are now.

Frankly, if all goes well, life is long. So if you might take advice for me I would offer this, hopefully life is long. Do stuff you will enjoy thinking about and telling stories about for many years to come. Do stuff you will want to brag about.

No one brags to the grandkids that they were one of the geniuses behind poisoning all the industrial alcohol in the country. Nobody's going to brag to grand kids about "Who-needs-wetlands? Let's-have-a-subdivision-and-a-shipping-canal-instead" decisions that made New Orleans the tragedy and the distant hope that it is today — and the 40 percent of our nation's wetlands that is Louisiana's beaten, bloodied coast.

Nobody's ultimately going to brag to their kids about having told the country that we ought to invade Iraq because, you know 9/11, and it ought to be easy. Imagine in the family history: "Yeah, then granddad went onto TV and said war in Iraq would take six weeks, max." Nobody wants to remember that about granddad.

So I would advise, if you have the choice, don't be the granddad, don't be the grandma whose temporal personal triumph is something you only hope is something that gets forgotten in history.

In the big picture, standing at the age you are now at graduation, looking for your own deep-water horizon, consider the possibility that you might very well get old — everybody hopes you do. Be part of good decisions because the stuff you do now, you will want to be bragging about when you become 90.

How do you become part of good decisions in the absence of a crystal ball? The best way to guess what is going to work out in the future and to figure out what you'll be glad you played a role in is to get smart and get smart fast, to take the opportunities you've got very seriously, to continue your education not necessarily in a grad school way, but in a lifelong way, be intellectually and morally rigorous in your own decision-making and expect that the important people in your life do the same if they want to stay important to you.

Gunning not just for personal triumph for yourself, but for durable achievement to be proud of for life is the difference between winning things and leadership; it's the difference between nationalism and patriotism; it's the difference between running for office and devoting yourself to public service; it's agreeing that you're part of something; taking as your baseline that you will not seek to reach your own goals by stepping on your community; it means coming to terms that your country needs you.

There will come times in life and career ahead when you have to choose between integrity and more short-term temptations. You will be the press secretary who is asked to lie to the press; you will be the regulator asked to approve the drilling with the Mickey Mouse safety plan; you will be the artist commissioned to make what you suspect is propaganda; the engineer pressed to use the cheaper, unsafe welds; the job applicant asked to cross the picket line; the research scientist expected to round to the nearest publishable conclusion; the spouse tempted to cheat; the physician tempted to shill; the staff sergeant asked to keep quiet; the politician confronted with the focus group that proves how well appeals to racism poll in your district; the pundit offered the talking point; the procurement officer offered the kickback.

In the short term, it's always crystal clear what advances you further, what makes you famous, what gets you your boss' job, what gets you elected, what gets you rich.

In the end, though, blood will out.

History has a way of not remembering that some of those Iraq War press secretaries had real talent in the White House press room; or that BP and Trans-Ocean had a real talent for drilling down to find oil deeper than anyone else.

When given the choice between fame and glory, take glory. Glory has a way of sneaking up on fame and stealing its lunch money later anyway.

Life might very well be long, keep your eye on the horizon and live in a way that you will be proud of. You will sleep more. You'll be a better partner. You'll be a better mom. You'll be a better friend. You'll be a better boss, and you will not have to remember any complicated lies to brag about at the old age home because you can brag about the truth of your well-lived life.

In conclusion, I'm not going to be egotistical enough to ask you to remember any of this advice. I might ask you, though, to remember Carry Nation. Carry Nation got what she wanted against the odds — a product of her hard work — it's not meant to be inspiring. It's meant to worry you. You are graduating from college. You are well prepared. You are poised. You're well connected. You are wicked smart. You are already accomplished.

Do not for yourself today, but for yourself to be proud of at the end of your life. Do not for the fame, but for the glory – learn the difference. Do not just for your own life, but for the life of your nation, that is still, for all its challenges and its flaws, is in many ways the best hope on earth. A country that needs you and the best you have to offer and your best judgment.

This article was adapted, with permission, from the speech MSNBC Anchor Rachel Maddow gave at Smith College’s 132nd Commencement Ceremony. Rachel Maddow anchors MSNBC’s Rachel Maddow Show.

Stranger and More Brutal Than Fiction

2010-06-03T01:18:43+00:00

by Lorraine Adams

Adams, a Pulitzer Prize winning former Washington Post reporter, looks at what happens when innocents are swept up in counter-terror efforts.

Since Times Square bomber Faisal Shahzad turned out to be a Pakistani native, it’s been a trying season for Muslim immigrants—especially those from the would-be terrorist’ s home country. The Feds have told Pakistan leaders “Check your family and staff for terrorist ties.” Terrorists are “hiding within our midst,” warned White House Counter-terrorism adviser John Brennan. Last week, and no doubt in the coming weeks too, we can expect a big spike in the number of Pakistanis arrested for immigration violations and related charges.

Sounds reasonable, doesn’t it? For the guilty, yes. For those who are neither guilty nor entirely innocent, the aftereffects will last—and last.

1999 was a similar season — for Algerians. Customs agents discovered explosives in the trunk of a rental car at the end of that year and arrested the driver, Ahmed Ressam, an Algerian as he tried to cross the Canadian border into Seattle. The country was in a state of heightened alert as turn of the millennium was but two weeks away, and, after Ressam’s arrest, government officials began detaining Algerians across the United States, almost all on immigration charges.

One of those then detained was Aziz Ouali, a 26-year-old East Boston dishwasher. Hunted by terrorists in his own country during the brutal Algerian civil war of the 1990s that left over a 100,000 civilians massacred, Aziz stowed away on a natural gas tanker from his hometown of Arzew, Algeria in 1997. He spent 52 days in the hold, and then dove into Boston harbor and swam ashore. Eventually he found other Arzew stowaways to live with, and one of them, Abdelghani Meskini, had a cell phone number that was found in the pocket of Ressam, the Algerian with the explosives.

As a reporter for The Washington Post, I wrote about Meskini in a Sunday magazine piece that ran in June 2001. I wanted the article to include Aziz’s story—an account of a young Muslim Arab who didn’t become a terrorist—but my editor at the time found his tale too ambiguous and thus too inconsequential to warrant more than a passing reference.

Frustrated after twenty years of writing simple-to-grasp articles despite the fact that my reporting often uncovered tangles of conflicting facts, I quit. I was in New York City three months later, when Saudi terrorists crashed into the World Trade Center towers, and killed the first boy I’d ever kissed along with 2,752 other people.

In the days afterwards, I sat down to write what would become a novel about Aziz. In 2004, Knopf published it to critical acclaim. Aziz, whose English wasn’t strong enough to read Harbor, never knew of it. His wife, a Boston secretary named Kim Sullivan, did, but she said the period the novel drew upon was too distressing to her husband and she felt it better not to mention it to him.

Today, Aziz sits in a Plymouth County jail in Massachusetts. He’s been there since last August. Aziz isn’t allowed phone calls, so I can’t talk to him. A few weeks ago, Kim, Aziz’s wife of nine-years, called. She was distraught. Ten years after Aziz’s arrest on Jan. 4, 2000, Karen-Anne Haydon, Boston Field Office Director of the U.S. Citizenship and Immigration Services, had ordered Aziz’s deportation. To stay with him, Kim, a blue-eyed, blond and Irish Catholic woman who pronounces Boston as “Bahston,” would have to move to Algeria, a country beset with Islamist insurgency and anti-American hostility. Her parents, in their seventies, were a wreck.

Aziz’s story today is, once again, a phantasmagoria of complication. There are failings on all sides.

There’s the government, which granted conditional resident status in May 2002, but never sent Aziz the green card he was entitled to. He applied, per instructions, for a replacement card, but for four years, officials stamped his passport so he could travel in and out of the United States to see his parents, and told him not to worry. Indeed, if the card had simply arrived, Aziz would probably not be facing deportation.

There’s his lawyer, Jerry Friedman, who never filed a required form I-751 asking that the conditions on Aziz’s resident status be removed, an oversight he says he regrets, but can’t realistically remedy. “I feel somewhat responsible,” he told me over the phone last week. “I should have at some point picked up on the fact that he should have filed. But I can’t keep track of when and where all my clients have to file every last item.” Friedman’s right: the immigration bureaucracy is a morass of filings, forms and deadlines. But, the fact remains: if Friedman had filed the form, Aziz would not be eligible for deportation.

Finally, there’s Aziz’s record. When he landed in America, he was arrested twice, both times for shoplifting a pair of sneakers--the first time in the months right after he swam ashore, and a year later, in 1998. He stayed in jail a night each time, and with no English and little understanding of the criminal justice system, believed he’d paid his debt to society. As a result, he didn’t mention the arrests when he applied for permanent resident status in 2001. The government, which had fingerprinted him numerous times and scoured his criminal record, didn’t find the misdemeanor arrests, both of which were ultimately dismissed. In her decision, however, Field Office Director Hayden found that Aziz’s failure to disclose the prior misdemeanor charges part of “a flagrant disregard for the laws of the United States.” The government did discover the arrests—but not until December 2005. It was then officials told Aziz he’d never filed the I-751 form. Plus: deportation proceedings were initiated at that point, but only because of the unfiled I-751 form. Kim and Aziz filed the form in 2006. But they needed $2000 to file it and the raft of other forms they needed to re-file. Aziz’s work as a housepainter had dried up, and out of work, he accompanied an old Arzew acquaintance on a shoplifting expedition to a Maine outlet store.

He was found guilty of criminal trespass and spent 21 days in a York jail. Shortly after, Kim and Aziz fought bitterly—and he pushed her. She got a ten-day restraining order and he slept in a motel for two nights. “I think he was frustrated,” she told me. “And he lost it and blamed me. “This is your country, these are your laws,” he was saying. We were both hot-tempered and he didn’t hurt me. I wish I’d not done it.” The trespassing conviction and Kim’s order figured in Hayden’s deportation decision.

Plenty of blame to go around, right? Well, it would take another novel to adequately untangle what landed Aziz in jail seven months ago and sped the deportation proceedings.

After the shoplifting fiasco, Aziz joined a company to make ends meet. Last summer, the economy in free all, he was laid off. The boss told him he was eligible for unemployment. The first two checks, about $180 every two weeks, arrived; when the third didn’t, Aziz went to the unemployment office to inquire. He brought folders of his now voluminous immigration records; Kim knew he would be asked to prove his green card status. The woman at the counter studied the documents. She was about to give Aziz a check when her supervisor interceded, took Aziz lost check claim form and, Kim told me, “”ripped it up in his face.” Aziz asked her, “What are you doing?” She said, “You don’t have a green card. Get one and come back.” After all the years of waiting for a green card, Aziz made a fatal error. As Kim tells it, he said, “Do you know what I’ve been going through to get a green card? I have a green card; it just never got mailed to me. I’ve been here ten years working, ten years paying taxes and here’s the order from the judge. What do you want me to do? Do you want me to go to the JFK building and get a gun and make them give me a green card?”

Aziz left the unemployment office. Senator Kennedy had just died and Boston was swarming with federal agents; as the country had been at the turn of the millennium ten years earlier, Boston was on high alert. Two U.S. Homeland Security federal protective service agents turned up Aziz’s parents’ house in Winthrop two days later. They were looking for Aziz. Kim’s mother called the couple, and Aziz spoke to the agents on the phone. Kim said he got off and said everything was fine. But the agents kept her parents’ house under surveillance that night. The next day her mother and father started out, as they did every weekend, for a drive to their New Hampshire cottage. Agents pulled them over in East Boston. “My mother called me,” Kim explained. “She was in a real dither. My father was out of his mind.” Aziz and Kim drove to the parking lot where her parents were detained and met the agents. Kim says everyone was friendly. The agents frisked Aziz, searched his truck and discussed his immigration problems.

“Everything seemed cool,” Kim recalled. “All of a sudden a white Murano comes flying into the parking lot and four guys come out. They cuffed Aziz and took him away.”

Aziz has been at Plymouth County Correctional Facility ever since. He still has time to appeal last month’s deportation ruling, but Kim says he’s lost heart, and fears he won’t give her the go-ahead to keep trying.

“It’s a very sad case,” Aziz’s lawyer told me.” I keep hoping the judge is going to wake up in the middle of the night like I do and say, “I really screwed up this case.””

Lorraine Adams, a Pulitzer Prize winning former Washington Post reporter is the author of two novels, Harbor, and The Room and the Chair, Knopf, February 2010.

On ‘Death to the Dictator!’

2010-06-03T01:06:38+00:00

By Maggie Barron

Death to the Dictator!
by Afsaneh Moqadam
Farrar, Straus and Giroux

Iran. June 12th. An election has been stolen. The Iranian people take to the streets to protests with a fierceness unseen since the Revolution. "Death to the Dictator!," written under a pseudonym to protect the author's identity, follows the story of Mohsen Abbaspour, a young man who --from his political awakening to eventual imprisonment and torture -- experiences the thrilling freedom and the harrowing brutality of the summer of 2009.

Before the election, voters did not have much of a choice between candidates. There was Ahmadinejad, a man "standing on his own froth," with a vise grip over the country's economy, oil reserves, and military-security complex. The "reformers," Mir-Hossein Mousavi and Mehdi Karrubi, were not exactly outsiders. In a country where men of the revolution are men of the establishment, both reform candidates had ties to the government. And neither raised his voice or otherwise objected during the cultural "slash-and-burn" of the previous decades.

Yet they did offer some change. Men and women who for years had been too cynical to participate in elections began to show up at the polls. People like Mohsen's father were "disconcerted by the rebirth of ideals" yet ready to be a part of that rebirth. The readiness lasted only a moment. Soon after voting, Mohsen's father felt like a fool, confirmed in the knowledge he'd possessed all along: the vote is fixed.

The days that follow, as Iranians of all ages take to the streets, are the happiest of Mohsen's life, "now, for the first time, not being forced to take orders, not having to listen to idiots, not being patronized, not being humiliated." The author seizes on the fascinating contradictions and ambivalence of that time. Protestors want to be on the international stage, but are suspicious of other countries conspiring against them. The new technology - Facebook, Twitter, and cell phones - help them organize, but it also quickens the pace at which events unfold, and, allowed the government to eavesdrop (with the help of Nokia Siemens, Iran's main cell phone network). Despite the fact that the Western press dubs this the "Twitter revolution," many protestors leave their phones at home for fear that the police will use them to their own advantage.

In the days after the election, the people still look to Ayatollah Ali Khamenei, the Supreme Leader, to pull the country back from the brink. The book paints a compelling picture of a man who, despite his religious status, is -- remains, above all else -- a politician. Focused on his own survival, he wouldnt have been able to oust Ahmadinejad even if he wanted to. After several days of protests, his speech provides little opportunity for reconciliation. With a sick logic, Khamenei claims that giving in to the protestors' "illegal demands" for a recount or a runoff will be "the beginning of a kind of dictatorship.

"Death to the Dictator!" breathlessly describes the view on the ground. The exclamation point in the title hints at many more exclamation points to come, and the dialogue tends towards the stilted -- or perhaps it's poorly translated (unless people do in fact yell "Malodorous swine!" in the heat of a police confrontation). This is not a book that provides a detailed account of how the protests were organized (most descriptions are in the passive voice - decisions "were made" and a route "is chosen" with little explanation of how or why those decisions came to be.) Nor does the book deliver investigative journalism, since as the author acknowledges, what happened out of the public view is still not known.

Yet I learned more from this little book than from any news articles, and, I bet, more than I will learn from the retrospective pieces likley to crop up in papers and on-line in commeration of the one-year anniversary of the events. "Death" is particularly illuminating with respect to the unique mindset of the Iranian people, and "the national tendency to interpret everything other than the way it appears."

It is heartening to find that lessons of the Velvet Revolution and the lessons of non-violence are alive in Iran, despite the imprisonments, show trials, and public confessions that have taken place in the past year. The country is described as a great limb that had fallen asleep under the weight of autocracy. When that weight is lifted ever so briefly, "the blood begins to rush."

At the same time, the author provides little hope for the prospect of gradual reform or reconciliation. Instead, the Islamic Republic has now entered "the last and perhaps dirtiest phase of its life." Things are likely to get worse before they get better.

"They won't say they are sorry for the past," writes the author. "Iranians don't really go in for apologies."

Maggie Barron is a former Brennan Center staffer.

On ‘In the Place of Justice: A Story of Punishment and Deliverance’

2010-06-03T00:44:00+00:00

By Amy Bach

In the Place of Justice: A Story of Punishment and Deliverance
by Wilbert Rideau
Knopf

At one time, Wilbert Rideau was America’s most famous inmate. While serving a life sentence for murder in Louisiana, Rideau became a journalist and editor of the prison magazine, The Angolite. He won honors for stories that exposed systemic brutality of prison life; in one issue, Rideau printed post-execution pictures of a deceased inmate so horrifying they prompted the state to switch from the electric chair to lethal injection. He appeared on Nightline and he worked on a film that was nominated for an Academy Award. And Life magazine ran a story and called him “the most rehabilitated man in America.”

But the more successful he became, the harder citizens in the Lake Charles community fought to oppose his parole. I couldn’t figure out why Rideau, unlike others who’d committed similar crimes, stirred such fierce community sentiment. I visited Lake Charles in 2002 and wrote a The Nation magazine piece about Rideau and why he, unlike others who committed a violent crime in the 1960s, couldn’t get past the parole board.

Clearly race played a big part in keeping Rideau behind bars. Rideau’s victim was white -- and a woman. The prosecutors painted Rideau as a sociopath lacking the capacity for empathy. Sure, they conceded, Rideau was smart and savvy. But what type of man would rob a bank, line up his three hostages, shoot them execution-style, and then go on to slash one woman’s throat to the point of decapitation?

I tried to get Rideau’s version of the crime he committed and interviewed him several times on the phone. Rideau said he couldn’t share any details. It would hurt his case, which was then set for trial, for the fourth time, in Lake Charles, Louisiana.

I wrote my piece without Rideau’s side of the story. But I always wondered about him. He was philosophical on the phone. And I wanted to hear his version of what happened on the night of the murder. When In the Place of Justice arrived, I tore into it. Was Rideau a sociopath? Or was Lake Charles over-punishing him for the color of his skin and his newfound success?

Certainly Rideau is, as the prosecutors said, savvy. As Rideau tells it, prison provided an excellent venue in which to test his writing, cunning, and political abilities. It is fascinating to read as he gains the trust and it seems genuine affection from a rich range of people including a federal judge, fellow inmates and many journalists. He acquires power in a context of utter subjugation.

The heroes of this book are, surprisingly and in large part, prison wardens – people like C. Paul Phelps who, according to Rideau, tap him to educate him about the prison system. “You’ve demonstrated in your writing that you understand this world better than most,” Phelps says to him in one of many accolades Rideau describes. Warden Phelps’ trust prevents Rideau from launching a plan to escape. It also results in a complete lack of censorship, which becomes a metaphor for freedom. Another warden, Ross Maggio, Jr., takes over when Phelps is promoted. Rideau continues to flourish and becomes, as he says, a “kind of an unofficial ombudsman for the prison, solving many inmate problems through low-level prison officials.” Rideau advocates for the mentally ill who are given arduous fieldwork; as result of Rideau’s protests, these inmates are relieved of their labor. “Unlike the lives of those who labored at difficult or mindless jobs, mine was determined rather by the events, intrigues, and problems of the day.”

The inner maneuverings of prison life – the slippery dealings that govern an unruly population: this is what interests Rideau most. In the Place of Justice reads, at times, like a business memoir. Rideau recounts, for example, the way in which he created an all black newsmagazine in prison. And, after prison officials offer him a job editing The Angolite, a historically white publication, Rideau chose instead to serve as the editor’s underling rather than shift the power structure too quickly. (Ultimately, of course, Rideau, took over).

Rideau’s chronicle is peppered with excerpts from his own writing. And Rideau can really write. I re-read one section about witnessing a rape again. I won’t forget it.

What the book is not is a revelation of the process by which a troubled man comes to grips with what he has done. One could easily imagine the book starting out with an expression of remorse. Rideau begins instead with the words “Kill that nigger,” words troopers used to excite dogs that pursued Rideau after the murder. The opening words set the tone for a book about a racist community which convicted Rideau of cold-blooded murder (a crime of intent) rather than manslaughter (a crime committed in the heat of passion) and carried a lesser, capped sentence.

On his side were the nation’s greatest attorneys, including Johnny Cochran who appears in Lake Charles as a surprise member of team, and George Kendall, an endlessly creative advocate. At trial, the defense team says Rideau was an impulsive and confused teenager who’d grown up in racially oppressive community. In 1961, standing and waiting for a bus in Lake Charles was enough to incite abuse and threats from white passerby. Rideau decided to rob the bank so he could escape Lake Charles; he ended up with three hostages whom, he said, he hoped to release in the country side; but they tried to flee, so he panicked, and shot haphazardly at them. Rideau says that when one of the victims, Julia Ferguson roused herself after she’d fallen to the ground, “I ran to her and I stabbed her.” Autopsy photos make it clear the stabbing was not a decapitation but a one-inch cut. “There was no rhyme or reason for what I did,” Rideau testified. “But I was scared to death.”

The jury found Rideau’s story compelling and found him guilty of manslaughter, not murder. Rideau had already served the maximum sentence for manslaughter – 21 years – more than twice over. He was released in 2005 on Martin Luther King’s birthday.

Throughout the book, Rideau voices remorse for the family of the woman he killed; often, however, he mentions remorse in the context of his own destruction, his own losses. It is not until the very end when he moves in with his girlfriend (now wife) Linda LaBranche, a Shakespearean scholar who becomes his life-saving paralegal, that Rideau evinces any real awareness of what victim Julia Ferguson’s family must have suffered. Rideau writes that when Linda’s cat dies she is “beyond the consolation of human words of kindness. Grief and loss define her. I think back forty-five years to the suffering, the sorrow I inflicted on Julia Ferguson’s loved ones and ask God, again, to forgive me.” It’s almost as if – until this moment – he hadn’t had a glimpse of what it meant to lose a child.

But maybe this is the point. When we treat people as if they have no humanity, they remain in war-mode, unable to truly bond with others. Or appreciate anyone’s heartbreak but his own. The miracle is that people do change in such an undignified context. It’s a lesson “free” people often forget. Even in prison, things change. So do people. Wilbert Rideau’s story reminds us of this in a most remarkable way.

Amy Bach’s book Ordinary Injustice: How America Holds Court (Metropolitan) was awarded the Robert F. Kennedy Book Award in 2010.

Before Roe V. Wade by Linda Greenhouse and Reva B. Siegel

2010-06-03T00:08:16+00:00

Roe and Its Aftermath

Forty years after the Supreme Court’s Landmark Decision, Abortion Remains a Hot Button Political Issue

Linda Greenhouse and Reva B. Siegel Explore the Roots of the On-Going Conflict

In January 1973, the Supreme Court declared unconstitutional Texas’s 19^th century abortion statute and Georgia’s more recent “ALI”-style legislation. The Court rested its decision on the right to privacy, found in Griswold v. Connecticut (1965) to protect the use of contraceptives. Roe v. Wade ruled that the right to privacy protected a woman’s decision in consultation with her physician whether to carry a pregnancy to term. The Court held that the unborn were not “persons” under the Fourteenth Amendment but that government had a constitutionally weighty interest in regulating the abortion decision to protect potential life. The Court explained that the strength of this interest corresponded with the stage of pregnancy. While the state was prohibited from restricting a woman’s right to abortion during the first trimester of pregnancy, it was permitted to regulate abortion “in ways that are reasonably related to maternal health” in the second trimester, and could constitutionally proscribe abortion after the point of “viability” (that is, when a fetus was capable of surviving outside the womb) except if doing so would endanger the life or health of the pregnant woman.

Both the right and regulatory interest that Roe recognized emerged from more than a decade of searching public conversation about abortion. Reasoning about the meaning of constitutional precedent in the midst of that conversation, the justices concluded that the right to privacy recognized in Griswold covered not only contraception but abortion as well. The Court conducted a lengthy analysis of historical precedent before declaring that the Constitution protected the abortion decision from state interference until the point of fetal viability. But, in explaining its decision, the Court also invoked or adverted to the judgments of growing numbers of lower courts, the decisions of public authorities such as the Rockefeller Commission that endorsed the legalization of abortion, and measures of popular support for liberalizing access. (In addition to the many briefs in Roe, Justice Blackmun had in his files the papers in Abele v. Markle, Connecticut’s abortion case, and other lower court decisions; documents reflecting the views of organizations such as the American Medical Association and the American Bar Association; and the 1972 Gallup poll reports showing steadily rising support for decriminalization.)

Roe’s holding fused old and new legal frameworks. By protecting a woman’s decision whether to bear a child until the period of fetal viability, the Court recognized as constitutional a framework at least partly resembling abortion “repeal.” Under Roe, government could no longer ban abortion or make access to the procedure conditional on ALI-type indications (for example, rape, maternal health) in the period of pregnancy before viability. But Roe did not altogether bar government from regulating abortion. To the contrary, Roe gave constitutional sanction to government interests in regulating abortion that grow with a pregnancy; it vindicated these interests alongside women’s right to have an abortion through the trimester framework, which allowed government to restrict abortion in the interest of protecting potential life at the point of fetal viability. In the years since Roe, the Court has allowed government more leeway to regulate abortion to express its interest in protecting potential life throughout pregnancy.

Roe’s reasoning fused old and new justifications for decriminalizing abortion. Roe indirectly reflected the abortion-rights claims of the women’s movement, recognizing that laws that criminalized abortion inflict constitutionally significant harms on women, and not doctors only. But Roe expressed those harms in public health-inflected language. The decision barred government from coercing women to bear children, but its reasoning did not audibly express the feminist claim (1) that a woman has dignitary interests in making her own decision about whether to bear a child, or (2) that a woman needs the ability to control the timing of motherhood in order to negotiate institutional arrangements that exclude caregivers from participation in the workplace and other arenas of civic life. Instead, Roe observed:

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Roe justified the abortion right by appealing to Griswold and earlier decisions that protected the right to make decisions about family life free from state interference. In extending this right to privacy to encompass the abortion decision, Roe reasoned about abortion in terms drawn from the reform debates of the early 1960s, emphasizing the importance of protecting a doctor’s autonomy as much as that of his patients. Women’s advocacy helped establish women as constitutional rights holders who are entitled to make decisions about sex and parenting without control by the state—but Roe barely acknowledged that such claims were circulating in public debate. Instead, the Court explained and justified its holding in language that depicted doctors as the responsible and authoritative decisionmakers, with women as patients subject to their guidance. In Roe, the Court states:

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.

.... This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

....The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician. If an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available. In representing the abortion decision as one that a woman made under the guidance of her doctor, the Court figured the doctor as the agent responsible for abortion decisions and the criteria guiding those decisions as medical.

This form of talk in Roe reflected modes of reasoning current at the time of the opinion. The recommendations of the Rockefeller Commission in 1972 presented women as having a “conscience” guiding their decisions about abortion, but nonetheless emphasized that women make decisions with their doctors.

Gallup polls in the summer of 1972 also expressed support for decriminalization in terms that presented women as making decisions with their doctors’ guidance. Gallup reported that “Two out of three Americans think abortion should be a matter for decision solely between a woman and her physician.” Roe’s holding and its reasoning reflected dominant understandings about abortion of the time. In striking down laws that banned abortion or allowed it in only a very few circumstances, Roe decriminalized abortion along the lines that the feminists and others advocated. But the Court gave only blurry and indistinct expression to the values feminists argued were at stake in protecting women’s choices. Something similar might be said of the justification the Court offered for abortion restrictions. The Court gave constitutional approval to a government interest in regulating abortion to protect potential life, but only barely explained or justified this interest, leaving unstated how this regulatory interest related to the old statutes criminalizing abortion or the claims of the contemporary antiabortion movement.

If Roe conformed to then-dominant modes of reasoning about abortion, at a time when the Gallup poll reported the belief of two-thirds of Americans that the abortion decision should be left to a woman and her doctor, how are we to understand the outcry against the decision that steadily mounted over the 1970s? Our review of the debate before Roe reveals several factors contributing to the conflict over abortion that were in play well before the Court issued its decision in January 1973, and identifies still other developments that intensified the conflict much later in the decade.

In the period between 1970 and 1972, even as public support for decriminalization was continuing to grow, bitter conflict over abortion had already begun. The story of decriminalization in New York and Connecticut shows that, even where opponents of abortion’s liberalization were numerically outnumbered, they were single-issue focused and passionate in moral conviction. In the period before Roe, the Catholic Church led opposition to decriminalization, organizing to support and punish legislators who voted for abortion’s liberalization. The fact that the Church and the burgeoning right-to-life organizations were encouraging single-issue voting around abortion caught the attention of politicians—and not only state legislators. Even as Catholics were working to build institutions and arguments opposing abortion in secular and nonsectarian terms, abortion’s very identification as a “Catholic” voting issue (however Catholics were divided about abortion, in fact) made the issue of interest to strategists building coalitions for the national political parties during the 1972 presidential campaign.

And so, by 1972, abortion was beginning to fi nd a life in national party politics. Republican Party strategists seeking to persuade Catholic voters and other so-called social conservatives to abandon their traditional alignment with the Democrats and join the Republican cause began to incorporate arguments against abortion rights into their case against the 1972 Democratic presidential nominee, George McGovern. Abortion rights, in this view, symbolized the new morality—a problematic “permissiveness” that afflicted the nation. Those who tarred McGovern as the “triple-A” candidate who favored amnesty, abortion, and acid may have suggested more of a difference between McGovern’s position on abortion and that of Republican nominee Richard Nixon than existed in fact; but the anti-McGovern arguments nonetheless helped reframe abortion’s meaning.

Triple-A claims about abortion had little to do with the concerns motivating public health reformers (who spoke of back alleys and coat hangers) or the claim advanced by religious opponents of abortion that abortion was murder. But the triple-A claim had much to do with feminist arguments for abortion repeal. Triple-A attacks on McGovern condemned abortion rights as part of a permissive youth culture that was corrosive of traditional forms of authority. The objection to abortion rights was not that abortion was murder, but that abortion rights (like the demand for amnesty) validated a breakdown of traditional roles that required men to be prepared to kill and die in war and women to save themselves for marriage and devote themselves to motherhood. Phyllis Schlafly’s attack on abortion never mentioned murder; she condemned abortion by associating it with the Equal Rights Amendment (ERA) and child care.

These shifts in the abortion right’s meaning were accelerating in 1972, as the ERA was sent to the states for ratification, and as the question of who should govern the nation was reverberating during the primaries and through the general election. But it is not clear whom these claims actually reached in the period before Roe. Th e claims reframing abortion that we have examined were designed to mobilize Catholic and conservative voters. Patrick Buchanan’s “assault book” advised the president’s campaign to send anti-abortion messages to Catholics and the National Right to Life Committee convention; and Phyllis Schlafl y—who had worked for Barry Goldwater in the 1964 election—sent her Phyllis Schlafly Report to a network of conservative readers. Th e reframing of abortion that would take hold over the course of the 1970s had only incrementally begun at the time the Court handed down Roe. (The first justice to join the Court after Roe was John Paul Stevens, nominated in December 1975. His views on abortion were unknown, yet at his Senate confirmation hearing, he was not asked a single question about abortion.)

In the immediate aftermath of Roe, organized opposition to the decision was still carried by the National Right to Life Committee and the Catholic Church. The National Right to Life Committee began mobilizing in support of a constitutional amendment that would overturn Roe and constitutionalize an embryo’s/fetus’s right to life, thereby requiring all states to recriminalize abortion. By 1975, the National Conference of Catholic Bishops had promulgated a Pastoral Plan for Pro-Life Activities that declared that “the decisions of the United States Supreme Court (January 22, 1973) violate the moral order, and have disrupted the legal process which previously attempted to safeguard the rights of children.” The plan urged “[p]assage of a constitutional amendment providing protection for the unborn child to the maximum degree possible,” and “[p]assage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.”

During the years after Roe, opponents were unable to muster broad-based support for overturning the decision and requiring abortion’s recriminalization. Many Americans supported the right recognized in Roe, some quite passionately. Others believed that abortion should be decriminalized but criticized the Court for deciding a question that might have been left to the political process. Those who believed the question should have been left to the legislature did not support a human life amendment constitutionalizing prohibitions on abortion of the kind the right-to-life movement was then advocating. Advocates of a human life amendment could not fi nd the support they needed, even among religious leaders. In the early 1970s, most Protestant denominations did not share the Catholic Church’s view of abortion. As we have seen, mainline Protestant groups approved of liberalizing access to abortion; some approved repeal, while others endorsed variants of the “reform” position, advocating regulation on the “therapeutic model.” In this period, conservative evangelical groups did not view abortion as a categorical wrong. Even aft er Roe, in June 1973, Southern Baptist Convention President Owen Cooper criticized the Supreme Court for decisions liberalizing abortion—and banning capital punishment—and then proceeded to observe that the Southern Baptists would support abortions “where it clearly serves the best interests of society.” His view of abortion was far from absolute, and expressed in secular, not religious, terms.

When Roe was handed down, the family-values movement that would mobilize against the decision and ultimately carry Ronald Reagan to national office in 1980 had already begun to take shape, but it had not yet crystallized. That coalition did not form in spontaneous response to Roe but was instead built with the help of strategists for the Republican Party, including many brilliant Catholic conservatives. In the process, opposition to abortion as murder was married to a variety of socially conservative causes, accelerating the process of party realignment that had begun before Roe during the Nixon administration. When conservatives of the New Right began to assemble a pan-Christian coalition against Roe in the late 1970s, the crusade against Roe would proceed under the banner of “pro-life” and “pro-family.”

Phyllis Schlafly’s Stop ERA organization associated the Equal Rights Amendment with abortion and gay marriage, using this frame to mobilize opposition to the amendment’s ratification in state houses across the country. During the mid-1970s, funding battles in Congress provided a lower-stakes arena in which to forge new alliances and erode support for the abortion right. By the late 1970s, Richard Viguerie and Paul Weyrich—architects of a more conservative Republican Party—were approaching such Protestant evangelicals as the Reverend Jerry Falwell and helping them to see in the abortion issue a question that could create a pan-Christian movement united against “secular humanism” and for “family values.” By 1980, the Christian Harvest Times was denouncing abortion in its “Special Report on Secular Humanism vs. Christianity”: “To understand humanism is to understand women’s liberation, the ERA, gay rights, children’s rights, abortion, sex education, the ‘new’ morality, evolution, values clarification, situational ethics, the loss of patriotism, and many of the other problems that are tearing America apart today.” In this way, a new relationship was emerging among Protestant evangelicals,the Catholic right-to-life movement, and the ascendant conservatives of the New Right. Increasingly lost in this transformation was an earlier Catholic association of a pro-life position with liberal ideals of social justice; forged was an increasingly tight association of pro-life with pro-family politics.

The decades of struggle that followed Roe—between the pro-life and prochoice movements and between the Republican and Democratic parties—came deeply to affect the Court and to infuse the Court’s reasoning about abortion with a much clearer expression of the convictions of the Americans arrayed in passionate support and opposition to the decision.

The Court’s decision in Roe was written by Justice Blackmun, whom President Nixon appointed to the Supreme Court in 1970, and supported by other of Nixon’s conservative appointees, including Lewis Powell, who during the Court’s deliberations actually advocated lengthening the time period in which women’s abortion decision was protected—from the end of the first trimester to the end of the second. But over the course of the 1970s, prominent Republicans shifted positions on abortion, acting on alignments and framings that were already in evidence by the 1972 election. By the decade’s end, conservatives of the New Right—led by Ronald Reagan, who, in the late 1960s, had signed California’s legislation liberalizing abortion—urged fundamentalist Christians to make common cause with Catholics in opposition to abortion and in support of family values. They attacked Roe as a threat to life and family and as a symbol of judicial overreaching. Republican Party platforms began regularly to support “the appointment of judges who respect traditional family values and the sanctity of innocent human life.”

With Republican presidents appointing justices who might be counted on to oppose Roe, judicial support for the decision narrowed, and by the late 1980s, Roe looked vulnerable to outright reversal. But the women’s movement continued energetically to mobilize in support of the decision, and in 1987 it helped defeat the nomination of Robert Bork, a prominent critic of the Court’s privacy decisions. Ensuing Supreme Court appointments by Presidents Reagan and Bush seemed to provide sufficient votes to overturn Roe. And yet, in 1992—during a presidential campaign in which the abortion right was a burning issue—the Supreme Court decided Planned Parenthood v. Casey, a case that both reaffirmed and narrowed Roe.

Casey justified both the abortion right and its regulation in terms that reflected the views of mobilized proponents and opponents of abortion rights more clearly than Roe itself had in 1973. Like Roe, Casey held that women had a constitutionally protected right to decide whether to bring a pregnancy to term, but, unlike Roe, Casey allowed government to regulate the exercise of that right from the beginning of pregnancy in the interests of protecting potential life—so long as the regulation did not impose an “undue burden” on a woman’s decision. Even as Casey narrowed the right recognized in Roe, it justified that right more expansively than Roe did. Casey tied constitutional protection for women’s abortion decisions to the fundamental liberty to choose one’s family life, as well as to the understanding—forged in the Court’s sex-discrimination cases—that government cannot use law to enforce traditional sex roles: “Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.” Casey’s account of the constitutional values that the abortion right vindicates makes clear that government respects not only women’s freedom but also their equal citizenship. Yet, Casey also listens carefully to Roe’s critics. It allows government to regulate women’s abortion decisions to express respect for the value of human life, so long as government does so in ways that express respect for the decisional autonomy of women: “[T]he State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.” In ways that Roe did not, Casey situates the abortion right in a community deeply divided over the basic values implicated by the debate. That conflict continues—on and off the Court.

In Gonzales v. Carhart in 2007, the Court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act of 2003. The law had been devised by the right-to-life movement to focus attention on abortions that doctors perform late in pregnancy for medical reasons; the law was designed to provoke public unease with abortion, and it succeeded. Doctors developed the regulated procedure as safer for the woman under some circumstances; abortion opponents succeeded in portraying the procedure as a step from infanticide.

The five justices in the majority insisted that Congress could regulate the method doctors employed in later-term abortions in order to differentiate abortion and infanticide, and so express respect for human life. At the same time, the opinion reaffirmed a woman’s right to terminate her pregnancy before viability, as spelled out in Casey. But while in Casey the Court had, at last, placed women at the center of the abortion decision, in Carhart the Court spoke less clearly. To the majority, led by Justice Anthony M. Kennedy, a woman seeking to terminate a pregnancy needed the state’s protection against making an unwise choice that she would come to regret. The four dissenters, led by Justice Ruth Bader Ginsburg, recalled Casey’s understanding that the abortion right vindicates women’s equality and liberty as citizens, objected that the majority had reverted to a view of women as not fully capable of acting in their own best interests.

The future of abortion rights under the United States Constitution remains uncertain. The Supreme Court will again speak to the question, but the record suggests that it is not likely to have the last word. The future lies in the Court’s ongoing dialogue with the American people. And the documents that tell that story remain to be written.

This article is reprinted, with permission, from Before Roe V Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling by Linda Greenhouse and Reva B. Siegel, Kaplan Publishing, June 2010.

Theodore Boone: Kid Lawyer, by John Grisham

2010-06-02T14:59:49+00:00

By John Schwartz

Theodore Boone: Kid Lawyer. John Grisham's latest is a legal thriller for young readers.

Theo Boone is a kid, just 13 years old, but everyone around Strattenburg says he knows more about the law than some of the lawyers in town. The ability he comes by naturally: both of his parents are attorneys. Theo's ardent desire for a career in the law, however, is more of an oddity. As his uncle says, "Most kids dream of being a policeman, or a fireman, or a great athlete or actor. I've never seen one so taken with the idea of being a lawyer."

The best Theo can come up with as an answer is "Everybody's gotta be something," but there's something more ticking inside of this kid, whose screen name is TBOONEESQ and who named his dog Judge. He's a Ferris Bueller whose idea of a day off involves cutting classes so he can slip into the courthouse and watch a trial.

In my middle school, Theo would have been rewarded for his lawyerly passion by getting pounded each day after classes. Instead, because this is a work of fiction, everybody comes to him for advice. The school secretary's brother has been hauled in for drunk driving. A buddy's parents might lose their home. A possible future girlfriend is going through the misery of a child custody hearing in her parents' divorce. Theo listens, taps a few keys on his laptop to find court records. Gives counsel --- which he, wisely, does not charge for, but which is generally sound -- and referrals to licensed practitioners in the needed specialty.

So when a big murder trial comes to Strattenburg, it's inevitable that Theo will end up right in the middle of it.

This is the set-up for "Theodore Boone: Kid Lawyer," the first young adult novel from John Grisham. Like everything else Grisham writes, it will almost certainly be a bestseller. But let's not be churlish about Grisham's Midas touch -- he's trying to explain the world of law to kids who otherwise might only know the courtroom from television. And Grisham wants you to know that TV gets it wrong, as Theo tells his classmates who will attend the first day of the murder trial with him:

"For those of you who watch a lot of television, don’t' expect fireworks. A real trial is very different, and not nearly as exciting. There are no surprise witnesses, no dramatic confessions, no fistfights between the lawyers." And, he tells them, with more than a bit of Grisham's teachy streak, very few people at trial are found not guilty: "About eighty percent of those indicted for murder eventually plead guilty, because they are in fact guilty. The other twenty percent go to trial, and ninety percent of those are found guilty."

This tendency to rattle off such facts in the way that kids might know a favorite pitcher's stats can be annoying, but it serves Grisham's purpose of writing a novel that serves as a primer on the law. He competently lays out the trial of Peter Duffy for the murder of his wife, Myra. The evidence against him is circumstantial, and the presumption of innocence appears to be weighing in his favor.

Grisham ends the story abruptly, and in a way that many young readers might find unsatisfying. But the story moves, after a rather slow start, and the pages seem to turn themselves. Think of it as your teenager's first airplane read, a rough-edged legal thriller that tries to teach young readers about the law while entertaining them. The cliffhanger, then, suggests that Grisham sees Theo as a franchise of books and movies. If he can get young readers excited about justice, he's doing good even while doing very, very well.

John Schwartz is the Legal Correspondent for the New York Times and the author of Short: Walking Tall When You're Not Tall At All.

Buy My Book - The Will of the People

2010-06-02T13:54:29+00:00

by Barry Friedman

The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

Farrar, Straus and Giroux, 2009

For the first time in years, as the Supreme Court winds up its “busy” season – when most of the big decisions come down as the justices scramble to finish their term for the summer and get out of town – the justices are already the center of serious controversy and attention. January’s Citizens United decision brought condemnation from the President, a dust up with the Chief Justice, and relentless attention from the media, the blogs, and members of Congress. Then, to put icing on the cake, Justice Stevens announced his retirement, Elena Kagan drew fire as the President’s nominee as we await the start of yet another summertime confirmation hearing.

What can we expect in the months ahead?

My book ends just as Chief Justice Roberts and Justice Alito took the bench in 2005. Things were quieter then, but predictions from the left were equally dire. So much so, that I began the Conclusion with a prediction of my own: “the long-run of the Roberts Court is not seriously in doubt; its decisions will fall tolerably within the mainstream of public opinion, or the Court will be yanked back into line.” I stand by that prediction, as well as the sentence that followed: “Whether or not this is a good thing – the question typically is obscured by passionate debates over the proper role of judges in a democracy – is far more difficult to say.”

The Will of the People is a history of the relationship between the Supreme Court and popular opinion, from 1776 to 2005. It is written against the claim, prevalent in both academic and popular discourse for over two hundred years, that the justices are impervious to popular control and thus an uncontrollable and anti-democratic force in American democracy. What I show is that ultimately the justices are accountable to the public. Many weapons have been employed throughout history against the Court when its decisions were perceived as threatening or beyond the mainstream. The Court has been “packed;” its jurisdiction stripped, its members threatened with impeachment, their salaries frozen; the justices have been burned in effigy!

As a consequence, the justices understand the limits of their power. Since Franklin Roosevelt lost the battle and won the war in his fight with the Supreme Court, the justices’ opinions in the big cases have tended over time to come into line with popular opinion. Which is why I believe the most likely outcome of this busy June is that the Roberts Court will hold its fire. And that if it doesn’t, and if the public disagrees, some correction will be brought to bear.

How we should feel about this, though, is complicated – and this complications should weigh equally on the political left and right alike. There is another longstanding view of the Supreme Court, one that sees the justices as protectors of minorities and constitutional liberty. Just as my book calls into question the assertion that the Supreme Court is a starkly independent institution, immune from popular control, it also raises doubts whether the justices ordinarily can or do fulfill this heroic mission.

I ultimately conclude that the highest function the Court fulfills is in stirring precisely the sort of controversy we see today. It forces the body politic to decide what it believes is the proper interpretation of the Constitution. The Supreme Court ought not to be a meter registering the latest Gallup Poll. But if the justices’ decisions lead us to debate the proper meaning of the Constitution, and if over time the justices adopt the “considered judgment” of the American people on such questions, then this might just be a function worth having in a democracy.

Barry Friedman is the Vice Dean and Jacob D. Fuchsberg Professor of Law at New York University School of Law. He contributes regularly to The New Republic, The New York Times, The American Lawyer, and Forbes.com, among others. The Will of the People is his first book.

What books are essential to understanding how the Supreme Court works?

2010-05-17T19:07:14+00:00

...and why the President’s nomination for Justice Stevens’ seat is so important?

let us know your answer in the comments.

Judith Resnik, Professor of Law, Yale University: Robert Cover's Justice Accused -- about courts in the time of slavery -- is the key book to understand that all judges and justices must struggle to decide what is "just" and therefore, that it matters who are justices are.

Orin Kerr, Professor, George Washington University School of Law: Alexander Bickel, The Least Dangerous Branch. Bickel's classic book considers the proper role of the Supreme Court in a democratic society. The book is almost 50 years old, but it remains very influential today.

Sean Wilentz, Professor of History, Princeton University: The most authoritative account of the court's evolution appears in the multi-volume Oliver Wendell Holmes Devise History of the Supreme Court, although the series is still a good way from reaching the modern era. For recent, up-to-date, accessible considerations, see the contrasting evaluations in Jeffrey Toobin's The Nine, which covers the court since the Reagan years and focuses on personalities, and Peter Charles Hoffer's A Nation of Laws, which discusses the court as part of the broad sweep of the history of American law and jurisprudence.

Geoff Stone, Professor of Law, University of Chicago: Keeping Faith with the Constitution, by Goodwin Liu, Pamela S. Karlan, and Christopher Schroeder, which provides an excellent account of a progressive understanding of constitutional law.

Alan Dershowitz, Professor, Harvard Law School: The Supreme Court deserves less respect than it gets -- especially from lawyers, professors, former law clerks and the elite media. It is simply another political institution whose members trade votes, make calculating decisions and maximize their own power and interests. There’s no evidence that principles play a greater role in judicial, than in legislative or executive decisionmaking -- especially at the Supreme Court level. But, there is far more hypocrisy in the judicial branch, because its power derives largely from the pretense that it is applying neutral principles in a principled manner. (That is why it would have been far more honest for the 2000 election to have been decided by the legislative branch on overtly partisan grounds than by the judiciary on hypocritically principled grounds.) Most books by law professors about the Supreme Court are far too deferential. The books I recommend are exposé books like Woodward and Armstrong's The Brethren and those which follow in its tradition by relying on inside sources, leaks and unauthorized disclosures. And by the way, there is no Santa Claus!

Conrad Harper, retired partner, Simpson, Thacher and Bartlett LLP: The biographical essays in Mr. Justice, edited by Allison Dunham and Phillip B. Kurland, offer insight into several key Justices. Justices are not paragons, but real people facing difficult issues that implicate their life experiences. Justice Stevens’s essay on Justice Rutledge, for whom he clerked, reveals a good deal about what Rutledge and Stevens regarded as important to judging.

Michael Gerhardt, Professor, UNC College of Law: Henry Abraham's classic Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II is the best book for understanding the Supreme Court and the importance of Obama’s nomination for Justice Stevens seat. Other essential reading:

David Danelski, A Justice Is Appointed
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics
Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality
Alpheus Mason, Brandeis: A Free Man's Life
Roger Newman, Hugo Black: A Biography
Kent Newmyer, John Marshall and the Heroic Age of the Supreme Court

What is the Best Novel About Justice?

2010-05-14T20:06:02+00:00

Let us know your answer in the comments....

Jonathan Franzen, Author, The Corrections:
The Tragedy of Pudd'nhead Wilson is the most underappreciated of Mark Twain's novels and one of the best books ever written about American slavery. It's about an antebellum small-town Missouri lawyer who dabbles in the new science of fingerprinting; it's also, deftly, comically, about justice in every sense of the word.

Alice Walker, Author, Overcoming Speechlessness:
Victor Hugo's Les Miserables. In the character of Jean Valjean, Les Miserables shows that what society narrowly considers criminal behavior is often caused by impoverishment, hunger, and desperation to which society has made insufficient address. I too believe that most “criminal” behavior has desperation, and the kinds may be varied, at its root. A truly just society would mean no one who is starving, or seeing those around her starving, would be punished for stealing bread.

Tom Wolfe, Author, I Am Charlotte Simmons: A Novel:
I can think of many good novels in which justice triumphs and many in which it crashes and burns. But as for how justice lives, I don't know how you can top Bleak House. Justice lives not in this world but in a play world. In Homo Ludens, the law is Huizinga's favorite example of . . . Man Playing. Not for nothing, he says, is a court of law called a court. It is by no means a case of mere linguistic coincidence. Justice, he says, is not a court of law's concern. The game is. Is there or has there ever been a prosecutor who got up in front of a jury thinking about justice? Has there ever been a civil lawyer who cared so much about justice that he would stand up in court and utter a word that wasn't paid for and put in his mouth? Of course not, says Huizinga. Homo Ludens! And there you have the story--and the message--of Bleak House. How would Dickens know? His first job was recording court testimony verbatim for newspapers.

Elizabeth Alexander, Professor at Yale, Poet, and Author, Miss Crandall’s School for Young Ladies and Little Misses of Color:
Alice Walker's Meridian. This is a novel that shows us that the beloved quest for justice that characterized the Civil Rights Movement was not without its challenges and conundrums."

Elizabeth Wurtzel, Lawyer and Author, Prozac Nation:
The best novel about justice I've ever read is also my favorite book: The Executioner's Song, by Norman Mailer. But i'm not sure it's a novel exactly.

2010: Take Back America: The Battle Plan

2010-05-12T22:25:04+00:00

by Dick Morris and Eileen McGann

Reviewed by Naomi Wolf

In `2010: Take Back America: The Battle Plan,’ Dick Morris and his wife and coauthor Eileen McGann, present a game plan for Republican victory in the upcoming Congressional elections, and, a putative libertarian manifesto against an alleged plan by Obama to take over the United States of America with a devious Socialist agenda.

The book is fascinating and troubling. Fascinating because Morris and McGann are brilliant political analysts. And they are adept at reading Americans’ true anxieties and crafting policy proposals and language that resonate emotionally and intellectually with them. (Disclosure: I worked informally on policy and message ideas with Morris during Bill Clinton’s 1996 Presidential campaign.) Such smart people, who write so clearly for a mass popular audience, could help Americans -- of all political parties -- better understand the core dynamics behind our moment in history.

But that is not Morris and McGann’s task. Their book is troubling because, in addition to providing important and well-documented insights into crucial issues such as the influence of lobbyists’ money on the voting records of representatives, the skyrocketing deficit and what it means for our economy, and the dangers of unchecked `bureaucratism’ (one of Morris and McGann’s less felicitous but still useful neologisms), `2010: Take Back America’ frames these trans-partisan issues in a fully partisan way and then intercuts its strong reasoning with heated sound-bites.

Take Back’s abiding idea is that America as we know it is ending under Obama’s stealth program to undermine everything that makes America healthy and free: `[T]hese elections will be the critical turning point for America’s future... On the one side is the America we know and love. On the other is a very different America: the dream of Barack Obama…His dream is our nightmare.’

Their overarching assertion is that Obama and a democratic-controlled Congress want to take over America and re-create it as a flat-out socialist system. And, to do this, so the story goes, Obama and co. have craftily deployed tactics such as excessive government intervention in medical care, Congressional Democrats’ enslavement to lobbyists, and increased governmental regulation of banks.

You don’t have to buy into the duo’s partisanship to grant that the issues they raise bear consideration. And the authors' track record for prescient observation reinforces their authority. Morris and McGann rightly note that, in their book, Fleeced, they forewarned readers of a stock market crash, and that, in Catastrophe, they cautioned that Obama would scale up the national debt. Many serious commentators agree with the team’s current predictions that inflation is likely to soar and the dollar will likely weaken -- forcing tax and interest rate hikes for all Americans.

The author’s substantive insights are marred by sloganeering. They skid quickly from serious warnings about unsustainable federal debt, to: `His strategic mantra is: REDISTRIBUTE! He plans to redistribute wealth, to redistribute access to health care, and to raise taxes until it no longer makes sense for productive people to keep working.’

The authors accuse Obama of having a `One World Strategy’ that seeks to subordinate US sovereignty to global intermediaries [`[H]e’ll try to place the entire US economy under the rule of the International Monetary Fund.’ Their analysis, which explores the effect on the US economy of IMF and the G-20 agreements proposed by Obama, is serious, but their rhetoric is extreme.

McGann and Morris range from a powerful discussion of the danger of losing doctors under Obama’s proposed medical care changes to demagoguery on the same issue: `Washington will set the standards of who gets lifesaving treatment or surgery…and who is left to die.’ They follow a sober assessment of the increase in the money supply, which people of all backgrounds are concerned about, with a footnote-less assertion that legislation the Administration proposed `would give the federal government the power to seize any business, fire its management, wipe out its investors, and run it as a government company for as long as it wanted, spending unlimited taxpayer money in the process…Fidel Castro and Hugo Chavez have no broader powers!’

The authors supply a beautiful assessment of the risks to the Constitution of some unchecked interventions; for this liberal, their summary of the Heritage Foundation’s argument that “nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party to purchase a good or service and…no decision or doctrine of the Supreme Court justifies such a claim of power’ is extremely suggestive and sparked an interest in greater depth of understanding.

But then the authors undertake an extreme about-face and undermine their own constitutionalist arguments: they worry, for example, that Guantanamo isn’t tough enough to keep its prisoners off the battlefield once released, which nicely ignores the fact that the prisoners are both held and released without due process of law required by the same Constitution, or that they have been tortured, also forbidden in the Constitution.

The `Obama-as-Socialist Dictator’ meme gets a workout in this book, sometimes on very persuasive arguments about a power grab and sometimes on evidence that is much slighter: `[E]ver since President Obama came to Washington, his near-hysterical criticism of Fox news and anyone else who doesn’t toe his line have us worrying that we may be in the first stages of an attempt to roll back our democracy and inhibit freedom of speech. Remember: all dictatorships begin with increasingly strident criticism of the news media.’ Rather, as Jefferson knew, all democracies begin amidst increasingly strident criticism of the news media. (Indeed Jefferson and Adams, when in Washington as Presidents themselves, spent a great deal of time criticizing, sometimes stridently, the contemporary news media.) Dictatorships begin with increasingly tough restrictions on the news media and penal or other actual punishments for critical speech. Big difference.

Despite my reservations, and, my efforts to read with eyes wide open, I came away from 2001: Take Back America with a valuable -- if dismaying -- understanding of how liberties might, theoretically be subverted from the left. And, horribly enough, I also came away with an unwelcome and rather appalling insight about liberty in America and how to protect it: if Bush modeled from the right, as I argued in The End of America, a ten-step program for taking excessive power – and, as I argued myself in my conclusion, future leaders of any party are likely to be tempted to replicate those tactics because power grabs work and serve anyone in office – why should I be surprised by a book that basically proves that my prediction has in some ways come true? This administration may have had a learning curve derived from the previous administration. They too may be making broad, possibly threatening assertions of unchecked power; they too have seen that doing so works.

Every book that warns America is at risk ought to include discussion of ordinary citizens and what they can do to protect our country. Let me write this so it can’t be taken our of context: I do not support most of Morris and McGann’s partisan agenda, they offer exciting, sound, energizing and practical ideas about how citizens can take the power of political change into their own hands. They offer good, useful suggestions about social media and how to use it to; these, and other tips for citizen action, are predicated on the idea that citizens need not leave matters to the elites or the experts but can use social media to raise political questions, start grassroots campaigns, and otherwise make change themselves. This is invaluable, as is the author’s populist message. It would have been even more valuable if aimed at energizing our democracy for any concerned citizen, whether of the left or the right.

McGann and Morris are Republican consultants. So perhaps it is naïve to wish their clear concern for country expressed in this book could be rephrased in trans-partisan terms. But, now more than ever, we need leaders and spokespeople willing to empower citizens to defend liberty in a trans-partisan context.

This may be the moment at which we most need to collapse the paradigms of the left and right in order to save liberties in ways on which Americans -- that those on Morris and McGann and my side of the spectrum – can agree.

How can a traditional liberal trust autonomous government to build a social safety net, when the government is no longer run by the people at all, but rather by corporate interests, and so government is actually enmeshed within business? And how can a traditional conservative trust a presumably autonomous free market, if free market autonomy has been compromised by the way big business has become enmeshed within government? The new, ungainly monster-merger of government and corporate interests arrayed against the people -- whether urban hippie activists or small-town businessmen and women. Getting rid of the usual labels might be a good way to begin to fight back.

In this fight, it truly is us, the people – of all political persuasions – against the government/corporate nexus that serves its own endlessly self-replicating agenda.

2010: Take Back America raises important points for a right wing critique of threats to liberty from the democratic `brand’ of this Leviathan. But it is incomplete because a dualistic left-right worldview, in this historical moment, is incomplete.

I hope McGann and Morris can be persuaded to make use of their next book, and their analytical and predictive powers, to craft a trans-partisan game plan for liberty that takes aim at oligarchs on both sides of the aisle, and by doing so addresses all of us.

There would have been a great value in this book as a critique of threats to liberty from a democratic administration – to bookend other works that analyze threats to liberty from the right -- if it had been written with a goal that transcended partisanship. For the truth is that there can be threats to liberty from excessive power grabs from the left or the right; from an unchecked, dictatorial representative of private sector interests, as I argued Bush sought to be, to interests that come from the left that seek overweening power through other tactics, such as excessive government controls of private life. And history shows that damage to liberty has come in both costumes and from both strategies.

Naomi Wolf is the author of seven books, including the New York Times bestsellers The Beauty Myth, The End of America and Give Me Liberty.

Buy My Book - Short: Walking Tall When You’re Not Tall At All

2010-05-12T22:21:39+00:00

By John Schwartz

Short: Walking Tall When You're Not Tall At All (Flash Point, an imprint of Roaring Brook Press, 2010)

This book is not really for you. That is to say, yes! Go ahead and buy it! But in fact, "Short" is written for young people -- kids from about the age of 12 to 17. It's about being short, which is a topic I know a lot about. At five foot three inches tall, my truth is that I am a short American.

I am shorter than my parents. I am shorter than my wife. I am shorter than my children. (My daughter has to stretch.) Growing up, it bugged me. Once I reached adulthood, I was no longer unhappy about being short, but I became increasingly unhappy with what being short had come to mean: flawed. Pharmaceutical companies, pushing for the government's permission to sell human growth hormone to children who were merely short, as opposed to those whose bodies can't produce enough of the hormone. In other words, the companies were offering to cure the condition known as idiopathic short stature.

We short guys weren't just little. We had a condition.

I wondered how that message is being received by kids growing up today, and worried about whether they would feel that they didn't measure up in more ways than the obvious. And as I did more research, I found references to studies that suggested short people have a harder time in school, earn less than taller folks and tend to be less successful. It seemed terribly unjust to me -- a burden on any child. But the deeper I dug, the more clear it became that the studies didn't actually doom shorter people to a second-class life. And so I decided to write a book to tell kids that they are, in fact, all right. And that they can walk tall. The book is part science test, part memoir and part manifesto.

It's a sneaky book, though. Randy Pausch, the author of the bestselling book The Last Lecture, his statement of hope while dying of pancreatic cancer, borrowed from the game of football to talk about "head-fake learning." On the field, the head fake tricks the opposing player into thinking you're headed in one direction when you actually plan to spring in another. But in the classroom, he said, head-fake learning is what the coaches did: "the one that teaches people things they don't realize they're learning until well into the process." So while a coach might seem to be teaching the rules of a game, the kids are actually learning things like teamwork and perseverance.

My head fake in writing this book is to entertain the reader with personal stories about growing up short and horror stories about the lengths people will go to in order to change their appearance -- the squeamish might want to skip over the passages about leg-lengthening surgery -- while giving them stealth lessons in science, methodical reasoning, statistics, sociology and psychology. And if I clown around a little to get a laugh, well, that's what the old Highlights magazine for kids calls "Fun with a purpose."

In a time when we seem most focused on teaching our children to score well on tests, I was hoping to give them a springboard to learn for the sake of learning, with a hook I hoped would excite them.

What does this have to do with justice and the law?

Back when our family was living in Maryland, I took on the role of a writing coach for kids preparing for their bar and bat mitzvahs. I would sit down with each one and go over the passage that had been assigned to them, and to help them explore the themes through the examination of more than a thousand years of scholarship and commentary.

What I found, over and over, was that the kids surprised me. They rose to the occasion, they had ideas of their own that they melded with the text. The kids responded most reliably to passages that touched on the theme of justice -- even if the greatest injustice one of them had known was overly broad restrictions on skateboarding in his local park. "It's not fair!" he said. "Put it in your speech," I said.

I had come to think that an injustice is being done to short kids -- and to any kid who is too short, too tall, too fat, too anything. Not meeting the norm is not a condition or a crime, but we were telling them they aren't good enough because of a factor they can't control. (The efficacy of the hormone shots is debatable, but many scientists believe that a child who receives the shots will go, as one put it to me, from being short to being short.) And so I teach them about the focusing illusion, in which we think that every problem we have flows from one problem, and try to help them think beyond it.

In my sessions with the Temple kids, we would not only discuss justice. We'd also discuss what's called tikkun olam -- literally, repairing the world. This small book, in its small way, is an effort at repairing the damage that we do to our kids by telling them they are not good enough.

John Schwartz, writes about law for the New York Times, and is the author of Short: Walking Tall When You’re Not At All.

The First Enabler

2010-05-12T22:13:45+00:00

Spoken from the Heart

By Laura Bush

Reviewed by Jesse Kornbluth

All men marry up.

I say that often, and the fact that I generally say it within hearing range of smart, attractive women doesn't make it less true. But I rarely leave it at a facile witticism. When I spot an A-list woman on the arm of a deadass bore, the petty bitch in me wonders: How does she do it -- year after year, listening to him, taking care of him, taking her clothes off for him?

For me -- and I'm sure I'm not alone in this -- George and Laura Bush are the Gold Standard of that kind of marriage. Set aside the debacle of George Bush's eight years as President. Consider only what we know of Bush as a guy: his bullying sense of superiority, his astonishment at unintended consequences, his proud rejection of intellect and his blind faith in a God who never fails to smile on him. And then consider what we know of Laura Bush as a woman: a passionate reader and champion of literacy, thoughtful mother, attentive listener.

How could quiet Laura Welch have decided to marry rowdy George Bush after a courtship of just six or seven weeks? What did the bookworm and the alcoholic have to talk about? How did they find a link strong enough for 33 anniversaries?

Spoken from the Heart -- for those who can't wait, there's a Kindle edition -- offers some answers to the questions that plagued me every time I saw the Bushes make an entrance, hand in hand.

This line on this book is that it's really two, and because White House memoirs never reveal much, only the first part -- the 160 pages that cover Laura Bush's Texas childhood, career as a teacher and librarian, wife and mother -- is newsworthy. Yes, if your idea of news is that, almost half a century later, Laura Bush gives a full account of the car crash that killed a high school friend. Of course she felt terrible. Couldn't face the boy's parents. Couldn't go to the funeral.

Laura Bush has read Willa Cather and Sherwood Anderson and Eudora Welty -- you can hear the spring breeze in these pages, feel the summer heat, see the screen door slam. But though she's a pleasure to read, the pre-White House decades are skimpy on real revelation. On their first date, George took her to play miniature golf; he was fun, he made her laugh. Okay, but Laura was an only child whose mother had lost three babies through infant death or miscarriage, and George, the black sheep of his family, had a mother who is the poster girl for “distant.” You don't need to be Justin Frank, author of “Bush on the Couch,” to think that Laura and George had interlocking primal wounds -- or to suspect that this couple had no way to access and share their pain.

It's the White House years that hold, for me, a trail of clues to the puzzle that is Laura Bush. Others have glazed over here, and they are not only right to do so, the book is designed to provide frequent naps. First Ladies go on trips, redecorate the White House, entertain the wives of foreign dignitaries, plan the Easter Egg Roll --- and then, to show they're capable of better, they get to champion a national priority. Laura Bush covers all the usual chores in mind-numbing detail, then gets excited about her extremely noble cause. Not, however, in a way that might excite a reader: “An afternoon with authors was as glamorous as a high-heeled, long-gowned ball.” Zzzzz.

Laura Bush repeatedly tells us how much she loves her strong, steady husband, and she leaps to his defense early and often. Why did Bush choose a Vice-President who would make him seem like an intern? Of the never temperate Cheney, she writes, “George liked Dick's thoughtful, measured demeanor.” Bush's reaction to Abu Ghraib: “I have to know how this was ever allowed to happen and to make sure it never happens again.” Bush was universally flamed for ignoring Katrina, then “visiting” the flooded New Orleans with a brief flyover in Air Force One. He had, as always, a good reason: “With people still trapped in their flooded homes and thousands not yet evacuated from the superdome, George did not want a single police officer or national guard unit to be diverted from the rescue efforts to assist with a presidential visit.”

Then there are the factual errors. Why did we go to war in Iraq in 2003? It wasn't just those elusive weapons of mass destruction and the Administration's determination to bring “freedom” to every country in the world with oil reserves. “By 2003, three out of four women in Iraq could not read,” she writes. “Over 60 percent of all Iraqi adults were illiterate.”

Mrs. Bush has it exactly wrong. The women of Iraq were vastly better off under the dictator than they are under the liberation. As the millennium dawned, 74.1% of the total population of Iraq was literate. Female literacy was at 62.2%. Source? The CIA World Factbook. (And woe to Iraqi women who believed what Laura Bush does. From an Amnesty International 2007 report: "Politically active women, those who did not follow a strict dress code, and women [who are] human rights defenders were increasingly at risk of abuses, including by armed groups and religious extremists.”)

There's a lot of patriotic blather painted over inconvenient facts in these pages, and at the start of a brief anecdote, I came to understand why such a devoted reader -- by definition, a person blessed with curiosity -- could so comfortably wear blinders about her husband and his associates. On 9/11, one of the first to die was the New York City Fire Department chaplain, Father Mychal Judge. She writes: “I was told…he was killed by the body of someone who had, in desperation, hurled himself from the upper floors of one of those towers.”

A four-second Google exercise -- or a quick look at the famous photograph of firemen carrying Father Judge's body -- would have given her a far more banal explanation. Laura Bush did neither. “I was told.” That's her “tell,” I think. Three little words that, for me, start to unlock the puzzle of Laura Bush.

It's the oldest marriage story of all: A man goes out of his way not to marry his mother, then turns his wife into her. That's what I suspect happened to good-hearted, 31-year-old, borderline spinster -- in Texas terms, anyway -- Laura Welch. She married a guy who was a bundle of issues that he had no way to address, and, with the best of intentions, he turned her into the kinder, gentler mother he never had. He had no idea he was doing it. Neither did she.

Which makes the marriage of George and Laura Bush an anthology of stories. Her husband -- a one-time cheerleader, now a motivational speaker -- told them, and he may have believed them; the first person a salesman sells is usually himself. And because to doubt him and discover a more credible alternative to his stories might lead her to see him as a small, pathetic boy in a job he couldn't possibly do well, she affirmed him.

Laura Bush, the First Enabler -- what a sad, sad book this is.

Jesse Kornbluth is editor of HeadButler.com.

A Congressman, A Murder And A Botched Police Investigation

2010-05-12T22:09:50+00:00

Finding Chandra: A True Washington Murder Mystery

By Scott Higham and Sari Horwitz

Reviewed by Maggie Barron

In 2008, after the Washington Post published a thirteen-part serial on its front page titled “Who Killed Chandra Levy,” the paper’s ombudsman, Deborah Howell, weighed in. “No investigation in my 2 ½ years here has provoked such sharply opposing reader comments,” she wrote, ranging from “Fascinating! Totally hooked! Riveting” to “Lurid! Appalling! A waste of time!”

The same adjectives come to mind in Finding Chandra, a repackaging of the Post series published almost exactly nine years after the Washington intern’s unsolved murder. Investigative reporters Scott Higham and Sari Horwitz, with the benefit of new interviews and confidential documents from inside the investigation, piece together the case step by step, trying to get at the answers that have eluded investigators for so long.

Chandra Ann Levy arrived in Washington, D.C. in 2000, as one of the city’s 20,000 summer interns. On the cusp of independence, Chandra found an internship at the Bureau of Prisons and her own apartment near Dupont Circle, but her parents still paid her cell phone bill. Incidentally, this was how they caught wind of their daughter’s affair with their Congressman, Gary Condit.

Condit, a rising star in Congress and a founder of the Blue Dog Democrats, had a habit of handing out his email and phone number to young women and spending campaign money on gifts for his constituents. He met Chandra soon after she arrived in D.C. and the affair began several weeks later. Chandra’s life in D.C. revolved around her secret relationship with Condit, and she had few other friends. That’s partly why, when Chandra disappeared in May, 2001, her parents instantly suspected Condit, especially when he denied knowing her very well.

Chandra’s parents knew that a media frenzy would keep pressure on the police to find out what happened to their daughter. But as the pressure increased, it may have allowed the true killer to evade authorities.

Condit’s denial of the affair, and his rather clumsy attempts to have the investigation point elsewhere, meant that no one, parents, police, or press, could possibly consider any other suspects. Condit submitted himself to several interviews, a DNA test, and an apartment search all in an attempt to clear his name. Each effort only reaffirmed that he was the prime (and only) suspect. How could it not be him? After months of scrutiny FBI investigator finally arrived at the more likely conclusion: “Condit simply didn’t care enough about Chandra to harm her or kill her.”

The tunnel vision may seem laughable now, but it is also tragic. As the press and the police hounded Condit, the critical window to find Chandra’s killer closed, clues disappeared, and a man by the name of Ingmar Guandique remained at large to assault several other women in Rock Creek Park. Guandique, an immigrant from El Salvador with a history of psychological problems, began his series of attacks on joggers around the time of Chandra's disappearance. The day after Chandra disappeared, his landlady noticed that he was covered in bruises and scratch marks. Yet it was only a year later, when a hiker stumbled across Chandra's skeletal remains in the park, that officials began to investigate him. By then, there was very little evidence left.

The book chronicles the media circus surrounding the Levy case, of course, but it’s the details of the error-riddled police investigation that are truly compelling. When Chandra’s parents filed a missing persons report, the D.C. Police Department had a record of solving only a third of the city’s homicides. Police forgot to check the surveillance cameras in Levy’s building before the tapes were deleted. Investigators in her apartment somehow interfered with her laptop before the FBI could analyze it. They chased after tips called in by psychics, but they did not think to search Rock Creek until months after her disappearance. Mistakes persisted even when collecting her remains. Investigators missed several large bones and blamed “woodland creatures” for making them difficult to find.

Despite the rich material, Higham and Horwitz are maddeningly vague on key turning points in the investigation. Why did it take the FBI over a month to search Chandra’s computer (where they found that she had looked at a map of Rock Creek Park trails right before disappearing)? Why did Park Police not think to notify investigators when known predator Guandique admitted to seeing Chandra in the park? Why, when they finally did search the park, did they search the roads but not the hiking and jogging trails, where her body would later be found? In the book, these issues are barely addressed.

These omissions are even more frustrating when the authors choose to sprinkle in entirely unnecessary details, like the kinds of animals a hiker used to find as a child, or the favorite TV shows of one of the investigators. In other cases, the authors fall back on shorthand and cliché in place of true characterization. Chandra ”was like the girl next door.” A U.S. Attorney is “a tough-talking Long Islander.” Mrs. Condit is simply “the consummate politician’s wife.”

The authors conducted hours of interviews, and yet the sources never really come to life. Condit, Levy’s parents, and the investigators are almost never quoted directly, so readers never hear their voice or their words. Instead the authors tie the narrative together seamlessly using many different interviews and points of view, but this makes it difficult to know whose version of events we are reading. I found myself constantly flipping back to the Notes section to verify.

So what have we learned from the case of Chandra Levy? Sadly, very little. There is no reason to think that the media would be more tempered in its coverage of a similar case today, or that investigators would be more focused, or that powerful men would start telling the truth earlier.

When the news is slow, very little can stop a media circus (in the summer of 2001, when the press wasn’t covering Chandra Levy, it covered shark attacks). It was only on the morning of 9/11 that the news trucks finally left the homes of the Condits and the Levys. The frenzy was over.

Almost a decade later, Ingmar Guandique is awaiting an October trial for what appears to be the entirely senseless, unmotivated murder of Chandra Levy. Though there are no other suspects, the authors admit that there is still very little evidence connecting Guandique to the crime. In fact, investigators took so long to find Chandra that they could not even discern a cause of death from her remains. In the first months of the investigation, it hardly dawned on anyone that Chandra’s death might not have been a titillating scandal but was instead a horribly random occurrence. In the end, people, including Chandra’s parents, wanted it to be Condit. The mystery of Chandra Levy remains unsolved because everyone wanted the story to be more sensational than it was.

Maggie Barron is a former staff member of the Brennan Center for Justice.

The Beauty Bias - The Injustice of Appearance in Life and Law

2010-05-12T22:02:45+00:00

By Deborah L. Rhode

photo by Robin Andersen

“It hurts to be beautiful” is a cliché I grew up with. “It hurts not to be beautiful” is a truth I acquired on my own. Only recently have I begun to grasp the cumulative cost of our cultural preoccupation with appearance. Over a century ago, Charles Darwin concluded that when it came to beauty, “[n]o excuse is needed for treating the subject in some detail.” That is even truer today; our global investment in appearance totals over $200 billion a year. Yet when it comes to discrimination based on appearance, an excuse for discussion does seem necessary, particularly for a scholar specializing in law and gender. Given all the serious problems confronting women—rape, domestic violence, poverty, inadequate child care, unequal pay, violations of international human rights—why focus on looks? Most people believe that bias based on beauty is inconsequential, inevitable, or unobjectionable.

They are wrong. Conventional wisdom understates the advantages that attractiveness confers, the costs of its pursuit, and the injustices that result. Many individuals pay a substantial price in time, money, and physical health. Although discrimination based on appearance is by no means our most serious form of bias, its impact is often far more invidious than we suppose. That is not to discount the positive aspects of appearance-related pursuits, including the pleasure that comes from self-expression. Nor is it to underestimate the biological role of sex appeal or the health benefits that can result from actions prompted by aesthetic concerns. Rather, the goal is to expose the price we pay for undue emphasis on appearance and the strategies we need to address it.

What compounds the problem is our failure to recognize that it is a significant problem and one to which law and public policy should respond. Compared with other inequities that the contemporary women’s movement has targeted, those related to appearance have shown strikingly little improvement. In fact, by some measures, such as the rise in cosmetic surgery and eating disorders, our preoccupation with attractiveness is getting worse. Injustices related to appearance fall along a spectrum, and involve everything from debilitating discrimination and social stigma, to the costs of conformity in time, expense, and physical risk. Even relatively minor inconveniences can cumulatively exact a substantial price.

THE PERSONAL BECOMES POLITICAL:
THE TROUBLE WITH SHOES

It started with shoes. Like many American women, I have had more issues with appearance than I care to recall. Happily, however, I have landed in an occupation with undemanding standards. Academics are known for relentlessly unattractive apparel. I am a case in point. My fashion instincts veer toward frumpy, but one compensation is that they have freed me from the footwear fetishes of many otherwise sensible women. In many professional contexts, I am surrounded by colleagues tottering painfully on decorative footwear. Some of the nation’s most distinguished female leaders hobble about in what we described in high school as “killer shoes.” During my term as chair of the American Bar Association’s Commission on Women in the Profession, I was struck by how often some of the nation’s most prominent and powerful women were stranded in cab lines and late for meetings because walking any distance was out of the question.

But inconvenience is the least of the problems. High heels are a major contributor to serious back and foot problems, and four-fifths of women eventually experience such difficulties. In an interview with the Wall Street Journal, one owner of a marketing firm acknowledged that her taste in footwear was partly responsible for her herniated disk. But about half of her clothes only “look[ed] good” when accompanied by four- to five-inch heels, so she had become resigned to pain: “There is a price to pay for beauty and high heels is one of them.” Now that designers are offering stilettos topping out at six inches, and several models wearing them have fallen on Milan runways, some stores have started to offer “Heel Walking Workshops.”

This is not, of course, a new problem. Chinese foot-binding is the most obvious, but by no means the only case in point. Although comfortable choices have clearly improved, shoe design may be the last politically acceptable haven for closet misogynists. Typical fashion profiles feature not a single item suitable for actual movement. Most have spindly heels and flesh-biting designs, on the apparent assumption that “if the shoe pinches, wear it.” All around me, smart accomplished women are doing just that, and ignoring the risk that heels this high will catch in grates, flatten arches, breed blisters, and hurt like hell on any extended walk. A startlingly large number of women are even willing to undergo painful and risky foot surgery for the sake of better “toe cleavage” that will fit fashionable styles. Women account for about 80 percent of all foot surgery, much of it related to high heels.

Some years ago, in a fit of pique, I wrote a semi-satirical New York Times op-ed on footwear as a feminist issue. Never have I touched such a responsive chord on issues involving gender; my mail box was swamped. Podiatrists sent supportive research, progressive shoe manufacturers sent catalogs, women shared tales of woe, and men vented their frustrations with wives’ dysfunctional choices. Not all responses were, however, complimentary. Some readers questioned why I had squandered this rare media opportunity on such a trivial problem. In a country where four million women annually are victims of domestic violence and twenty million live in poverty, why put the height of heels at the top of the women’s agenda? The short answer was that I hadn’t. I have been peddling earnest policy-oriented editorials on more serious topics for decades. This was the column the Times was interested in printing. But my broader point, then and now, has been to expose how appearance-related practices, even some that seem petty or benign, can cumulatively limit our lives. If men manage to be sexy without help from their footwear, why can’t women? And why have we made so little headway, in law, politics, and public education, in addressing the injustices of appearance?

THE COSTS AND CONSEQUENCES OF APPEARANCE

A threshold question is why we should care about any of these questions. What are the social consequences of physical appearance? Although most of us realize that looks matter, few of us realize how much, or how early its influence starts. Beginning at birth, those who are viewed as physically appealing are also more likely to be viewed as smart, likeable, and good. The ridicule and ostracism that unattractive children experience can result in lower self-confidence and social skills, which leads to further disadvantages in later life. Appearance also influences judgments about competence and job performance, which, in turn, affect income and status. Résumés get a less favorable assessment when they are thought to belong to less attractive individuals. These individuals are also less likely to get hired and promoted, and they earn lower salaries, even in professions such as law where appearance has no demonstrable relationship to ability.

Given these advantages, it makes sense for individuals to be concerned about their appearance. Still, the extent of that concern is striking. In representative surveys, 90 percent of women consider looks important to their self-image, and over half of young women reported that they would prefer to be hit by a truck than be fat; two thirds would rather be mean or stupid. More than a third of obese individuals are willing to risk death in order to lose just 10 percent of their weight; three quarters will assume the risk for 20 percent.

People also spend more on appearance than the results often justify. Americans invest $40 billion annually on diets, which rarely result in significant or sustained weight loss. About 95 percent of dieters regain their weight within one to five years. Of the $18 billion consumers spend on cosmetics, only 7 percent pays for ingredients. The rest subsidizes expensive packaging and marketing of products, including many that scientists find ineffectual. Even investments that result in high levels of individual satisfaction raise issues of social priorities. Although almost a fifth of the United States population lacks basic health care services, inessential cosmetic procedures have increased by 400 percent over the last decade and are the fastest growing area of medical expenditures. Liposuction is the world’s most common form of surgery.

Moreover, time and money are not the only costs. Substantial health risks accompany some appearance-driven practices, particularly those involving cosmetic surgery and yo-yo dieting. For many individuals, concerns about appearance also contribute to psychological difficulties such as depression and eating disorders. These difficulties are partly attributable to widespread stigma and discrimination. Bias based on attractiveness is largely unregulated and compounds other inequalities based on class, race, ethnicity, and gender. Prevailing beauty standards privilege those with white-European features and the time and money to invest in their appearance. Women face greater pressures than men to look attractive and pay greater penalties for falling short.

SURVEYING THE FOUNDATIONS: SOCIAL, BIOLOGICAL, ECONOMIC, TECHNOLOGICAL, AND MEDIA FORCES

What accounts for this premium on appearance? According to sociobiologists, we value attractiveness, especially in women, because it is a sign of health and fertility, which are key factors in reproductive success. Such theories help account for nearly universal preferences such as clear skin, facial symmetry, and hour-glass figures. But evolutionary imperatives alone cannot explain the variations over time and culture in what people perceive as attractive. The most obvious example is weight. Whether plumpness is prized or punished seems to depend largely on its role in signaling social status under different environmental conditions. Where food is scarce, fatness is a mark of wealth and prominence. Where food is abundant, the reverse is true. Our current cult of thinness makes no sense from an evolutionary standpoint; low body weight is linked to reproductive dysfunction.

There are other explanations for the importance of appearance and variations in cultural preferences. How someone looks can express religious and political values, as well as convey class and cultural identity. Particularly in today’s consumer-oriented culture, dress, grooming, and figure are crucial signals, as well as sources, of wealth. The body is a prime site for what sociologist Thorstein Veblen famously described as “conspicuous consumption.” Huge global industries turn on addressing problems that we haven’t always known we have. Sags and bags that were once accepted as a normal consequence of aging now account for a multibillion- dollar market in frequently ineffectual cosmetic responses.

Advances in science and technology have created new opportunities for “self-improvement” and corresponding pressures to take advantage of them. For example, the dramatic escalation in cosmetic surgery reflects both the growth in effective techniques and physicians’ efforts to market services not subject to insurers’ cost constraints. Other appearance-related products, now cloaked in a veneer of pseudoscience, promise effortless perfection. “Space-age slenderizer” and “poly-u collagen peptides” offer to shed consumers’ unwanted pounds and wrinkles overnight. The media in general and advertisers in particular have played an important role in magnifying the importance of appearance and the pressures to enhance it. Women’s magazines pitch an endless array of cosmetic advice and exhortation. Judging from their tables of contents, readers’ most urgent concerns are on the order of “thinner thighs in thirty days.” Televised makeovers and beauty pageants fuel implausible aspirations and unhealthy practices. “Reality” programs involving weight loss and cosmetic surgery are anything but realistic; careful editing omits anything inconsistent with a happily-ever-after ending. The public’s repeated exposure to airbrushed, surgically enhanced fashion models and Hollywood celebrities further reinforces unrealistic standards. Only five percent of American women are in the same weight category as models and actresses, and efforts to replicate their figures often lead to eating disorders and related psychological dysfunctions.

The media’s sexualized portrayals of prominent women, including everyone from athletes to politicians, also carries a cost. Overemphasis of their appearance deflects attention from their performance and reinforces sex-based double standards. That the highest paid member of Sarah Palin’s vice presidential campaign was her makeup “artist” speaks volumes about our misplaced priorities.

FEMINIST CHALLENGES AND RESPONSES

There have been efforts to challenge these priorities. In the United States, the nineteenth-century social purity crusade against cosmetics, the African-American campaign against skin whiteners and hair straighteners, and the feminist struggle for dress reform all set the terms for modern debates. During the Victorian era, religious and community leaders insisted that “respectable” women did not rouge. Prominent African Americans denounced cosmetic and grooming practices designed to replicate white norms. And suffragists such as Elizabeth Cady Stanton and Amelia Bloomer attempted to popularize alternatives to the corsets and crinolines that endangered women’s health and constricted their movement.

None of these efforts were particularly successful. It took the rise of the contemporary women’s movement in the 1960s to mount a broader and more sustained challenge to the beauty industry. That campaign kicked off with the infamous “bra-burning” protest at the 1968 Miss America pageant. Although no lingerie was in fact incinerated, the label stuck and battle lines were drawn. In most media portrayals, the activists were frumpy fanatical feminists, unhappy about standards of attractiveness that they could not hope to meet.

Gradually, however, the mainstream women’s movement supplied more tempered and influential critiques. Naomi Wolf’s bestselling Beauty Myth exposed many products as what dermatologists labeled “cosmetic hoo-hah.” A cottage industry of commentary on eating disorders and cosmetic surgery has made clear the medical risks of other appearance-driven practices. As critics have noted, even physically harmless preoccupations divert time and money to self-improvement rather than social action. Sexualized portrayals of prominent women—Hillary Clinton’s cleavage, Sarah Palin’s beehive, Michelle Obama’s upper arms—have underscored the double standard that channels attention to women’s appearance instead of their accomplishments.

Responses to these critiques have taken several forms. Commentators within and outside the women’s movement have defended appearance-related efforts as either a satisfying form of self-improvement and self-expression, or a necessary concession to cultural expectations. From their standpoint, the “personal may be political” but it is also personal. As long as women are subject to a double standard, they might as well do what they need to do and get on with their lives. The beauty industry has made analogous efforts to respond to feminist critiques by co-opting feminist principles. In the world of Madison Avenue marketers, diet and cosmetic products are a way for women to “be all they can be” and express who they “really are.”

Yet what is it that women want to be and how much time and money do they want to spend to get there? For many women, there are no easy answers, and issues of appearance remain a source of anxiety and ambivalence. That is particularly the case for women of a certain age, when cosmetic procedures, hair tints, and weight loss regimes begin to seem like necessary alternatives to “letting themselves go.” Even feminists who see these options as oppressive often feel shamed by their inability to escape them, or discomfited by the trade-offs. After all, as Susan Brownmiller ruefully notes, “sensible shoes aren’t sexy.”

There are some ways around this standoff. Whatever their other differences concerning appearance, most women would agree on several key points. The pursuit of beauty should be a source of pleasure, not a response to shame or social pressure. Women should be able to choose whether or not to dye their hair or use Botox without being viewed as politically incorrect or professionally inadequate. They should neither be held to a higher standard of appearance than men, nor ridiculed as vain for their efforts to measure up. If men can seem eminent as they age without cosmetic enhancement, so too should women.

APPEARANCE DISCRIMINATION: SOCIAL WRONGS AND LEGAL RIGHTS

We are, however, a far distance from this ideal world. What stands in the way? Two fundamental questions arise: Are any of the disadvantages resulting from discrimination based on appearance unjust? If so, do they call for some legal remedy?

The clearest argument for condemning appearance discrimination is that it offends principles of equal opportunity and individual dignity. As with other forms of prejudice, bias based on appearance often rests on inaccurate stereotypes. Assumptions that overweight individuals are lazy, undisciplined, or unfit are a case in point. Appearance–related discrimination also may stigmatize individuals based on factors at least partly beyond their control, and may encourage unsafe cosmetic and dieting practices.

A related concern is that such bias reinforces other inequalities based on race, ethnicity, class, age, and gender. A widely publicized example of sex-based double standards in appearance involved the grooming policy at Reno’s Harrah’s Casino. It required female beverage servers to wear makeup and nail polish, and to have their hair “teased, curled, or styled.” Male servers needed only short haircuts and fingernails that were “neatly trimmed.” Darlene Jespersen, a bartender with an outstanding performance record, challenged the policy on the grounds of sex discrimination. She felt that being “dolled up” was degrading and interfered with her ability to handle unruly customers. A federal appellate court rejected her challenge because she had not introduced proof that the standards imposed disproportionate burdens of time and expense on women, a fact that presumably would be obvious to reasonable jurors. Does anyone, except apparently some federal judges, really need expert testimony comparing the average time required for cleaning fingernails with applying makeup and styling hair? And as one dissenting judge pointed out, cosmetics “don’t grow on trees.” Such makeup and manicure requirements may seem trivial, but the broader principle is not. As another dissenting judge noted, the assumption underlying the casino’s policy was that “women’s undoctored faces compare unfavorably to men’s.” Holding only women to sexualized standards diverts attention from competence and perpetuates gender roles that are separate and by no means equal.

A final objection to discrimination based on appearance is that it restricts rights to self-expression. How individuals present themselves to the world may implicate core political values, cultural identity, and religious beliefs. Frequently litigated examples include hair length, hair styles, headscarves, and yarmulkes that employers have been unwilling to accommodate.

Although many individuals dismiss such discrimination as inconsequential, it occurs more frequently than they assume. Anywhere from 12 to 16 percent of workers believe that they have been subject to such bias, a percentage that is in the same vicinity, or greater, than those reporting gender, racial, ethnic, age, or religious prejudice. So too, almost half of surveyed Americans believe that obese workers suffer discrimination in the workplace, a figure that is higher than for other groups, such as women and minorities, who are protected by antidiscrimination laws. When asked about legal remedies, the public splits almost evenly for and against prohibitions, with a majority of women and minority groups favoring a ban.

What stands in the way? There are a few major arguments against making appearance discrimination unlawful. One concern is that for some goods and services, employees’ attractiveness can be an effective selling point. Many bars, restaurants, and department stores have imposed hiring and grooming standards that enforce a certain “brand” look: “slender,” “hot” “young and trendy” or “not too ethnic.”3 As one Hooters spokesperson explained, “A lot of places sell good burgers. Hooters Girls, with their charm and all- American sex appeal, are what our customers come for.”

Yet that is an argument that courts have generally rejected in other discrimination contexts, and with reason. Consumer preferences often reflect and reinforce precisely the attitudes that society is seeking to eliminate. So, for example, unless sex is a business necessity, employers may not select workers on that basis. The same should be true of sexual attractiveness. Hooters’ customers who want cleavage with their burgers are no more worthy of deference than the male airline passengers in the 1970s who preferred stewardesses in hot pants.

To some courts and commentators, however, a ban on appearance discrimination asks too much. From their perspective, even if such discrimination is unfair, the law is incapable of eliminating it and efforts to do so will result in unwarranted costs and corrosive backlash. Stanford law professor Richard Ford voices a common objection: “a business community united in frustration at a bloated civil rights regime could become a powerful political force for reform or even repeal.” Many judges bristle at the prospect of clogging the courts with petty disputes over makeup, weight, and grooming standards. But it is by no means self-evident that prejudice based on appearance is harder to eradicate than other forms of bias. In fact, considerable evidence suggests racial, gender, and disability biases are also deeply rooted, but nonetheless subject to change through legal prohibitions. Moreover, as discussion below notes, none of the few local and state prohibitions on appearance discrimination currently in force have triggered the exorbitant costs or backlash that critics have predicted.

Bans on appearance discrimination could contribute to progressive social change. By expressing aspirations, establishing appropriate standards, deterring violations, and raising public awareness, such legal remedies could nudge us closer to a just society. In cases where victims of appearance discrimination have brought suit, the result has often been to raise public awareness of the costs of bias and to secure workplace or policy changes that help prevent it. Even litigants who lose in court may win in the world outside it. Harrah’s casino changed its policy after the lawsuit. But Darlene Jespersen paid too high a price. She lost a job at which she excelled and was blacklisted when she sought another. As her lawyer noted, when it comes to the casino business, “Reno is a small town.”

LEGAL FRAMEWORKS

Jespersen’s experience is all too typical. On the whole, the legal regulation of appearance has an unbecoming history. Its Anglo-European foundations date to thirteenth-century sumptuary laws, which reserved certain fashions only for aristocrats. Early American legislation focused more on preventing “indecency” than reinforcing class privilege. To that end, some jurisdictions banned “unsightly” individuals or women without corsets from appearing in public.

Contemporary law has banished such archaic prohibitions, but it has also given wide latitude to businesses and employers to impose their own restrictive grooming requirements and to discriminate on the basis of appearance. In general, such discrimination is illegal only if it involves other characteristics that civil rights law protects, such as sex, race, religion, or disability. So, for example, weight and grooming standards can be struck down if they impose unreasonable, disproportionate burdens on one sex. Grooming codes may be impermissible if they fail to make reasonable accommodation for religious expression, or selectively target practices associated with a particular racial group. Disability law has been held to prohibit weight discrimination in a very small percentage of cases involving extreme obesity that has a biological basis and that appears to impair normal functioning.

Even in these contexts, however, many courts have taken a restrictive view of what counts as discrimination. A representative example is the Harrah’s casino decision, which found no disproportionate burden resulting from hair and makeup rules. Judges have also been unsympathetic to African American women’s desire to wear cornrows, and Sikh employees’ wish to wear turbans or beards, even when the employer presents no convincing business justification for banning them. Narrow interpretations of state and federal disability law also exclude from protection the very individuals who need it most: those who are only moderately overweight and who are not impaired in their job performance. Such employees can be dismissed at will even if employers can show no demonstrable competence or health-related reasons.

These dismissals seem particularly unjust when the job involves no customer contact. As an attorney for an obese man denied a job as a fast-food cook put it, “The only thing that should matter to McDonald’s . . . [is] how he cooks, not how he looks.” Cases where individuals in such positions have lost their jobs occasionally have prompted public protests and policy responses, including some of the local ordinances that ban discrimination based on appearance. How do these ordinances work in practice?

One state and six cities or counties prohibit some form of appearance discrimination: Michigan, San Francisco, the District of Columbia, Santa Cruz (California) Madison (Wisconsin), Urbana (Illinois), and Howard County (Maryland). These laws vary in coverage and in the frequency of enforcement, but no jurisdiction has experienced the flood of frivolous claims that commentators have anticipated. Hypothetical examples such as Jewish deli owners forced to hire cashiers with swastika tattoos have made for provocative journalism, but they are nowhere to be found in reported cases.39 Santa Cruz, the poster child for critics of appearance prohibitions, has had no complaints in fifteen years. Urbana has had none in seven, and San Francisco has had only two in eight years. The average number of annual complaints for the other jurisdictions has ranged between one (the District of Columbia) and thirty (Michigan). Most have included allegations of other forms of bias (race, sex, and religion). Although some of these claims seem frivolous, they could have been brought without an appearance law, so it is not clear that the law has added significantly to businesses’ legal expenses.

Few appearance complaints have resulted in litigation or an unqualified victory for the complainant. For example, Michigan has averaged fewer than one lawsuit a year, and no final judgments of discrimination. However, a substantial number of cases have ended up with reasonable negotiated settlements, and the existence of the laws may have deterred unjust bias. Moreover, the grievances that have obtained some legal remedy demonstrate the need for such protection. A representative example involved a waitress fired when she was six to seven months pregnant, despite a doctor’s letter indicating that she was still able to work. The manager’s professed concern for maternal health was inconsistent with statements that she made to other workers about the effect of the waitress’s appearance on the restaurant’s image.

The American experience fits in a broader international context. European law is similar to that of the United States, and generally prohibits appearance discrimination only when it involves other forms of bias covered by human rights law (such as that involving race, gender, religion, age, disability, and sexual orientation). However, some countries, particularly France and Germany, extend greater protection to employee privacy, dignity, and self expression; those interests prevail unless the employer can demonstrate a strong countervailing business justification. So too, in Germany, grooming codes are often established through “codetermination” between management and elected worker councils, a process that accords significant weight to employee interests. Based on the information available, the Australian state of Victoria is the only jurisdiction outside the United States that has an explicit ban on appearance-related bias. It experiences few complaints that require a formal hearing.

Part of the reason for the limited legal enforcement activity both here and abroad is that victims of appearance discrimination face significant costs and evidentiary obstacles; favorable decisions are unlikely in the absence of compelling undisputed facts. Many individuals are unwilling to assume the stigma and reputational damage of publicly airing complaints about their unattractiveness. Particularly in jurisdictions that do not authorize attorneys’ fees or substantial financial damages, victims also may lack sufficient economic incentives to pursue a claim. Another deterrent is the extreme deference that some courts and commissions give to employer regulations. So for example, Wisconsin discount stores and pet supply outlets have been allowed to ban earrings for male sales personnel. Employers’ desire to ensure a “pleasant shopping experience,” and their unsupported assumption that jewelry on men is inconsistent with that goal, have been found sufficient justification for the restrictions.

Yet despite these limitations, the existence of appearance discrimination laws can sometimes make a difference. There are, in fact, many examples in which victims of inaccurate stereotypes or invidious bias obtained reasonable remedies. When these cases also attracted significant publicity, they sent a message to employers, and raised public awareness of the costs of discrimination. A complaint before the San Francisco Human Rights Commission illustrates that potential. It involved Jennifer Portnick, a 240-pound aerobics instructor, who was denied a franchise by Jazzercise, a national fitness company. According to its lawyer, “One of the keys to success is extending franchises to instructors with a fit, toned body. Being able to portray this image inspires students . . . [and] is a necessary part of what students seek to achieve.” But Portnick was in fact fit. She worked out six days a week, taught back-to-back exercise classes, and had no history of performance problems or lack of students. She simply wanted to be “judged on my merits, not my measurements.” After a commission ruling in her favor and massive adverse publicity, the company changed its policy. The message that emerged in national media coverage was that full-bodied students can be inspired, not deterred, by an instructor their size who is fit and toned. Given recent evidence suggesting that fitness, rather than body mass, is the best predictor of health in most overweight individuals, that is an important social message.

There is one area in which more effective appearance-related laws and enforcement structures could make a difference in one particular area: the regulation of false or misleading claims about beauty and weight-reduction products. Aggressive marketing of these products both encourages preoccupation with appearance and deludes consumers about effortless ways to enhance it. Although federal and state consumer agencies have authority to regulate fraudulent advertising, they lack the resources to keep up with the barrage of deceptive claims involving pseudoscientific “miracle methods.” If promises about these products sound too good to be true, it’s because they aren’t true. No one, outside the fantasy land of Madison Avenue marketing, can “eliminate” fat through seaweed patches and Chinese herbal creams (“no will power required”). Yet consumers squander billions of dollars on such products, partly because a majority of the public wrongly assumes that manufacturers could not make these claims without solid scientific evidence for their validity.

A ROAD MAP FOR REFORM

None of these problems connected with appearance are readily remedied. Our prejudices and preoccupations run deep, and multibillion dollar industries have a stake in perpetuating them. Yet neither are we helpless to address some of the worst injustices, and, there are available that could push us in the right direction.

As a threshold matter, we need greater clarity about our goals. At the cultural level, a central priority should be to promote more attainable, healthy, and inclusive ideals. Our standards of attractiveness should reflect greater variation across age, weight, race, and ethnicity, and our grooming requirements should reflect greater tolerance for diversity and self-expression. Judgments based on appearance should not spill over to educational and employment contexts where they have no socially defensible role. More support should also be available for strategies that promote healthy lifestyles, which could also help reduce the weight-related concerns that prompt discrimination.

Law can assist that agenda by combating appearance bias and by providing greater protection from restrictive grooming regulations and misleading advertising claims. One obvious strategy would be to prohibit discrimination based on appearance that is not justified by substantial business needs. A fair and accessible dispute resolution process, with the potential for judicial review, could increase the likelihood that victims would raise concerns as well as minimize the cost of addressing them.

In the absence of specific prohibitions on appearance discrimination, some progress is possible through broader interpretations of current discrimination and disability law. When evaluating sex-specific grooming and dress codes, courts should take a realistic view of what constitutes disproportionate burdens on one sex, and should disallow rules that reinforce gender stereotypes, like the makeup requirement of Harrah’s Casino. Customer preferences should not constitute a justification for discrimination unless sexual attractiveness is a business necessity. So too, disability law should be interpreted more broadly and should encompass discrimination based on weight whether or not it involves extreme obesity with a physiological cause.

Law is, of course, only one of the strategies necessary to promote cultural change, and it is most effective when joined with other approaches. Litigation and policy initiatives can often raise public awareness about the appearance discrimination as well as the broader societal efforts necessary to address it. To achieve such reform, activists need to be strategic in how they coordinate legal, media, and political strategies. A textbook example is the work of fat activists in San Francisco after a local fitness center ran an advertisement featuring a space alien and a caption, “When they come, they’ll eat the fat ones first.” Protesters showed up at the center in alien costumes wearing signs that said “Eat Me” and “This Gym Alienates Fat People.” Activists also demanded hearings before the San Francisco Human Rights Commission to explore examples of discrimination. The result was enactment of the city’s ordinance prohibiting discrimination based on height and weight.

Another masterful coordination of legal and media tactics involved a sex discrimination suit by two former “Borgata Babes,” cocktail waitresses at the Atlantic City’s Borgata Hotel and Casino. Two “Babes” agreed, as part of their employment contract to keep a hourglass figure, and be height and weight appropriate.” The policy contributed to widespread eating disorders and related mental and physical health difficulties. Widespread media coverage led not only to a substantial settlement, but also to greater public awareness of the health issues at stake. The terms were confidential, but the impact was not. Commentators drew analogies to another celebrated lawsuit involving the Sand Hotel. There, a cocktail waitress successfully sued for sex discrimination after being forced to wear a revealing uniform and high heels, and being told that her job was to “sell sex.” That litigation prompted other Atlantic City casinos except the Borgata to offer uniforms including pants and flat shoes.

These cases underscore the possibilities for social change. Lawsuits, along with public protests, have made a difference. Workplace policies have been modified, legislation has been passed, and employees have been reinstated or compensated. Yet the full potential of law has yet to be realized. We need more explicit prohibitions of appearance related bias, and more expansive interpretations of existing antidiscrimination laws that could address it. Even if formal complaints remain infrequent, such legal mandates can play an important role in deterring and publicizing abuse, providing bargaining leverage for victims, and expressing social ideals. Beauty may be only skin deep, but the damages associated with its pursuit go much deeper. Only through a better understanding of the injustices of appearance can we fashion more effective responses.

Deborah L. Rhode is the Ernest W. McFarland Professor of Law at Stanford University and is the author of several books including In the Interests of Justice, Access to Justice, and Ethics in Practice.

Adapted, with the author's permission, from The Beauty Bias published by Oxford University Press, Inc. © 2010 Oxford University Press, Inc.

New Rules for New Radicals: The Tea Party Discovers a Taste for�. Saul Alinsky!

2010-05-12T21:59:37+00:00

Alinsky’s biographer, Sanford D. Horwitt, reflects.

Like many of us, Saul Alinsky enjoyed being an author more than he enjoyed the process of writing. Nonetheless, early in his career, at age 36, he produced a national best seller, Reveille for Radicals. His timing was near-perfect. Published at the end of World War II when many American intellectuals had grave doubts about the viability of democracy, Alinsky struck a hopeful chord .with his inspiring account of how skillful, tough-minded community organizers could rouse ordinary people to band together and improve their communities

But the publication of Alinsky’s last book, Rules for Radicals, was not nearly as timely. Alinsky struggled writing it through much of the 1960s, easily distracted by his high-profile community organizing campaigns in Chicago, Rochester, New York and other cities. He also much preferred lecturing on college campuses and talking and arguing with student activists late into the night. When Alinsky finally turned in his manuscript and Random House published Rules for Radicals in 1971, the civil rights and anti-Vietnam War activism of the 60s was largely over; there were no large waves of protest to ride, and Alinsky’s book made only a modest splash. The following year, the father of community organizing died of a heart attack at 62.

Over the next four decades, Rules for Radicals, which Alinsky wrote as a handbook on how to organize for progressive political change, managed to stay in print, typically selling a few thousand copies a year—until last year. In the first six months of 2009, a period that included Barack Obama’s Inauguration and the rise of the Tea Party, an astonishing 37,987 copies of Rules for Radicals went out the door.

Yes, the Tea Partiers discovered Saul Alinsky! They are gobbling up copies of Rules for Radicals because many, if not most, believe that Alinsky is the reason we have a President Obama.

After all, didn’t candidate Obama say repeatedly that the best education he ever had was as a community organizer in Alinsky’s Chicago?

Didn’t young Obama attend a 10-day training conducted by Alinsky’s successors at his Industrial Areas Foundation?

And didn’t Barack Obama upset the seemingly invincible Hillary Clinton for the Democratic Party presidential nomination by employing Alinsky organizing techniques to win the pivotal Iowa caucuses and the caucus states that followed?

Since all of the above are true, how much of a stretch is it in Tea Party Land to conclude that without Saul Alinsky there would be no President Obama? No stretch at all. “Saul Alinsky Takes the White House,” a right-wing blogger proclaimed, and others referred to the then-new president as “Barack Hussein Alinsky.”

More than a year later, Alinsky’s name and Rules for Radicals are a daily presence on the Internet, especially in Tea Party blogs and, periodically, on Rush Limbaugh’s and Glenn Beck’s web sites. For most of these commentators, Alinsky is caricatured as a dark, sinister force whose spirit comes alive late at night in the Oval office. He is routinely labeled as a Marxist or Communist or Socialist, none of which he was.

But if Alinsky is typically vilified in conservative and Tea Party circles, there also are notable exceptions.

Last summer, an early Tea Party leader, Michael Patrick Murphy, published a book, Rules for Conservative Radicals, that at first glance looks like a dead ringer for Alinsky’s opus, with an identical red cover and distinctive black font. The subtitle begins with “Lessons from Saul Alinsky.” Leahy’s narrative includes grudging admiration for Alinsky’s understanding of human nature, how to motivate people and gain political power. Although Leahy is critical of what he asserts are Alinsky’s ethical, win-at-all-costs shortcomings, his larger message is that the Tea Party has a lot to learn from Alinsky’s organizing insights.

Echoing Leahy, Alinsky-style organizing is a centerpiece of Tea Party workshops around the country led by Washington-based FreedomWorks. Its top organizer, Brendan Steinhauser says: “I put together a PowerPoint on grassroots organizing and the favorite part for a lot of these [Tea Party] organizers was how this leftist community organizer Saul Alinsky was so effective and how we can use his tactics against the left.”

Alinsky has become a relevant figure to many of these grassroots folks because he speaks to their fundamental frustration: their political powerlessness. But the political left is not the only source of grassroots anger that is animating the Tea Party movement. The villains are not only Obama and a Democratic Congress. The mostly-Republican Tea Partiers in the hinterlands are increasingly venting their anger at office holders within their own corporate-dominated party who voted for the bank bailout and are generally perceived to be flabby when it comes to fighting for conservative principles. Witness the insurgent, Tea Party-supported candidates challenging establishment-backed Republicans in primaries this spring in Florida, Indiana, Kentucky and other states, including Utah, where the Tea Party is now claiming responsibility for defeating incumbent Sen. Robert F. Bennett at the Republican Party’s nominating convention.

At the beginning of his book, Alinsky said: “The Prince was written by Machiavelli for the Haves on how to hold power. Rules for Radicals is written for the Have-Nots on how to take it away.” Almost 40 years later, that message resonates with a new audience that Alinsky could not have imagined. Indeed, I wouldn’t be surprised if at this very moment a Tea Partier somewhere in America is underlining those very words in his copy of Rules for Radicals.

Sanford D. Horwitt is the author of Let Them Call Me Rebel: Saul Alinsky, His Life and Legacy.

John Paul Stevens: An Independent Life

2010-05-12T21:12:41+00:00

The first biography of retiring Justice Stevens doesn’t tell-all, or even very much. Burt Neuborne considers some of the rich, provocative questions the authors might have explored.

Reviewed by Burt Neuborne

If timing were everything, this short biography of Justice Stevens, delivered on the eve of his retirement, would win first prize. It even has a concluding section on Justice Stevens’ dissent in Citizens United. But timing isn’t everything, and this book, though useful, will not win any prizes. First, the good stuff. There is an excellent chapter describing the financial problems faced by Justice Stevens’ father, including a description of the conflict of interest issues underlying his criminal conviction and eventual exoneration by the Illinois Supreme Court. Before the Depression, the Stevens family controlled a large Illinois life insurance company and a major hotel in Chicago. When the hotel, built in 1927, was rocked by the Depression, the family-controlled insurance company lent the family-controlled hotel a considerable sum of money in a vain effort to save it. When everything crashed, the policyholders were left holding the bag. The Illinois Supreme Court held that no evidence of fraud existed, but I wonder what a modern court would do with the self-dealing issues. A second excellent chapter details the inside baseball story of Stevens’ nomination to succeed Justice Douglas, edging Arlen Adams and Robert Bork for the plum. It’s fun watching Dick Cheney unsuccessfully try to outflank Edward Levi. It’s also useful to be reminded that President Ford chose Stevens over Bork because he was facing a Senate controlled by the Democrats. Finally, it’s chilling to be reminded of how Supreme Court confirmation hearings have changed.

The excellence ends there. The authors open the book with Justice Stevens’ dissent in the flag burning cases, where he argued that burning an American flag is not protected by the First Amendment. I almost didn’t get past the portion of the first chapter where the authors breezily compare John Paul Stevens to William Kunstler, apparently viewing each as independent spirits. It is, however, impossible to use the two names in the same sentence. Stevens is the epitome of propriety and thoughtfulness. In my opinion, Kunstler was an ego-driven phony. The treatment of Stevens’ flag burning dissent is, unfortunately, reflective of the book’s general failure to analyze his monumental judicial output. Many cases are cited and discussed, but, apart from stressing how unpredictable Justice Stevens could be, and how he is prone to write far more concurrences and dissents than the average Justice, there is next to no analysis of the evolution of his jurisprudence, or the judicial legacy he will leave. You put the book down knowing about as much about the Stevens’ judicial legacy as when you started.

That’s too bad because there is an extraordinary story to tell. Take the two dissents in Texas v. Johnson and Citizens United that open and close the book. The flag burning case marked the final emergence of the speaker-centered vision of free speech that has dominated the Court’s analysis since the “Fuck the Draft” case in 1971. Most of the time, under a speaker-centered view of the First Amendment, it’s a hearer-be-damned world. For me, the most intriguing aspect of the flag burning cases is not Justice Brennan’s somewhat labored opinions, or the Scalia/Thomas embrace of the deregulatory potential of the First Amendment, or even the razor-thin distinction between flag burning and draft card burning. It is the hint in Justice Steven’s flag burning dissent of a more complex free speech universe in which hearers get treated a little better.

The free speech universe consists of at least five players: a speaker, an audience of hearers, the topical target of the speech, a conduit that conveys the speech to a mass audience, and the government censor. The impoverished vision of the First Amendment universe that emerges from the flag burning cases tends to flatten that universe into speakers and censors – speakers wear the white hats; censors the black ones. No one else gets a hat. Speakers are treated as Promethean figures, clothed with dignity. Hearers don’t count for much, unless they threaten a violent reaction. If a whiff of violence is in the air, the speaker can be restrained to head off a breach of the peace; but a civilized hearer who will not resort to violence is usually ignored. When hearers do get acknowledged, as in Justice Kennedy’s Citizens United opinion, it’s usually to explain why speakers should get even more protection. Targets are aptly named. Some targets become fair game for false and misleading speech because they are “public figures.” Others become hapless targets for abuse because they were born into the wrong race, religion or gender. Conduits, generally huge entertainment companies that transmit other people’s speech for profit, have persuaded the Supreme Court to give them a speaker’s white hat. The government censor, wearing the black hat, is seen as a fool or a knave defending the cultural or political status quo.

It’s possible, as did Justice Stevens in Citizens United, to imagine a more complex speech universe where everybody gets a hat. Most of the time, recognizing a more complex free speech universe wouldn’t matter because the interests of all of the participants would line up in the same direction. Most of the time, speakers want to speak; hearers want to hear; conduits want to transmit; and the target has no legitimate beef. Those are the easy free speech cases where the government censor really is a fool or a knave. But Justice Stevens recognizes that there can be trouble in free speech paradise when the interests of the participants genuinely conflict. Sometimes, as in government secrecy contexts, hearers want to receive the speech, but the speaker wishes to remain silent. Sometimes, as with hate speech or flag burning, speakers want to talk, but most hearers don’t want to listen. Sometimes, one set of powerful speakers is able to drown out competitors, making it difficult for a hearer to get both sides. Sometimes, conduits bent on maximizing profits prevent speakers from reaching hearers. Sometimes, innocent targets are victimized by careless or vicious speakers. When such conflicts emerge, how should we resolve them?

First Amendment protection of commercial speech is one example of conflict resolution. Commercial free speech is hearer-centered; not speaker-centered. It is designed to provide consumers with information useful to making informed market choices. False and misleading commercial speech gets no First Amendment protection. Commercial speech conduits, like billboards, newspapers, and broadcasters, can be regulated in the name of important interests like equality, privacy and aesthetics. Targets get real protection against false claims. Consumers get reams of useful information.

I do not argue that it would be a good idea to ratchet down the protection of political and aesthetic speech to the level of commercial speech. General First Amendment doctrine would, however, benefit from taking the interests of hearers and targets more seriously, taking the interests of conduits less seriously, and acknowledging the role of government as a legitimate mediator of potential conflicts of interest in the free speech universe. Sometimes, as Justice Stevens recognizes, the government censor wears the white hat.

Burt Neuborne is the Inez Mullholland Professor of Civil Liberties at NYU School of Law and a frequent Supreme Court litigator.

Excerpt from Scott Turow’s Innocent

2010-04-29T18:56:38+00:00

Prologue

Nat, September 30, 2008

A man is sitting on a bed. He is my father.

The body of a woman is beneath the covers. She was my mother.

This is not really where the story starts. Or how it ends. But it is the moment my mind returns to, the way I always see them.

According to what my father will soon tell me, he has been there, in that room, for nearly twenty-three hours, except for bathroom breaks. Yesterday, he awoke, as he does most weekdays, at half past six and could see the mortal change as soon as he glanced back at my mother, just as his feet had found his slippers. He rocked her shoulder, touched her lips. He pumped the heel of his palm against her sternum a few times, but her skin was cool as clay. Her limbs were already moving in a piece, like a mannequin’s.

He will tell me he sat then, in a chair across from her. He never cried. He thought, he will say. He does not know how long, except that the sun had moved all the way across the room, when he finally stood again and began to tidy obsessively.

He will say he put the three or four books she was always reading back on the shelf. He hung up the clothes she had a habit of piling on the chaise in front of her dressing mirror, then made the bed around her, pulling the sheets tight, folding the spread down evenly, before laying her hands out like a doll’s on the satin binding of the blanket. He threw out two of the flowers that had wilted in the vase on her night table and straightened the papers and magazines on her desk.

He will tell me he called no one, not even the paramedics because he was certain she was dead, and sent only a one-line e-mail to his assistant to say he would not be at work. He did not answer the phone, although it rang several times. Almost an entire day will have passed before he realizes he must contact me.

But how can she be dead? I will ask. She was fine two nights ago when we were together. After a freighted second, I will tell my father, She didn’t kill herself.

No, he will agree at once.

She wasn’t in that kind of mood.

It was her heart, he will say then. It had to be her heart. And her blood pressure. Your grandfather died the same way.

Are you going to call the police?

The police, he will say after a time. Why would I call the police?

Well, Christ, Dad. You’re a judge. Isn’t that what you do when someone dies suddenly? I was crying by now. I didn’t know when I had started.

I was going to phone the funeral home, he will tell me, but I realized you might want to see her before I did that.

Well, shit, well, yes, I want to see her.

As it happens, the funeral home will tell us to call our family doctor, and he in turn will summon the coroner, who will send the police. It will become a long morning, and then a longer afternoon, with dozens of people moving in and out of the house. The coroner will not arrive for nearly six hours. He will be alone with my mom’s body for only a minute before asking my dad’s permission to make an index of all the medications she took. An hour later, I will pass my parents’ bathroom and see a cop standing slack-jawed before the open medicine cabinet, a pen and pad in hand.

Jesus, he will declare.

Bipolar disorder, I will tell him when he finally notices me. She had to take a lot of pills. In time, he will simply sweep the shelves clean and go off with a garbage bag containing all the bottles.

In the meanwhile, every so often another police officer will arrive and ask my father about what happened. He tells the story again and again, always the same way.

What was there to think about all that time? one cop will say.

My dad can have a hard way with his blue eyes, something he probably learned from his own father, a man he despised.

Officer, are you married?

I am, Judge.

Then you know what there was to think about. Life, he will answer. Marriage. Her.

The police will make him go through his account three or four more times—how he sat there and why. His response will never vary. He will answer every question in his usual contained manner, the stolid man of law who looks out on life as an endless sea.

He will tell them how he moved each item.

He will tell them where he spent each hour.

But he will not tell anybody about the girl.

This article is excerpted, with the author’s permission, from Innocent by Scott Turow.

Author Talk with Scott Turow

2010-04-29T18:49:29+00:00

20 years after his smash best-seller, Presumed Innocent, Scott Turow is back. The author – a practicing lawyer and former U.S. Attorney – talks to Just Books about innocence, guilt, and the novel.

interviewed by Susan Lehman

Who is more likely to find justice: people in real court rooms where you've tried cases for 20 years, or, the characters in your novels?

Scott Turow: Different justice I would say. Our court system can rarely deal with the emotional life of everyone involved, while a novel surely can. So literary justice may seem more satisfying.

SL: DNA evidence plays a central role in Innocent. How do advances in forensic evidence affect the criminal justice process?

ST: Not as much as people think. DNA is a great tool that adds more certainty in given cases. But there is not genetic evidence in most criminal cases.

SL: Innocent’s protagonist, Rusty Sabich, is a candidate for State Supreme Court Judge. And the coming election plays a slightly warping role in his decision making. Do elections taint the judicial process and the quality of individual judge’s decision -- or is Rusty’s candidacy one of many details on a fictional resume?

ST: I have long supported merit selection of judges. Politics and the law are rarely a good mix. how can judges fulfill their responsibility to protect the rights of political minorities, when their survival on the Bench depends on pleasing the majority?

SL: Your terrifically fabulous character, Judge Basil Yee, can hardly speak English but keeps a firm grasp on essential truth. In describing his own turn as a lawyer he says he reminded himself “Case not about me. About witnesses. About victim.” And the jury always gets it right: Yee win his cases. Do you think juries get it right and – more often than not – reach the right conclusions?

ST: yes, but their reasoning is often frightening to lawyers

SL: In your fiction, “innocence” has different – and sometimes conflicting -- moral and legal dimensions. (Characters are sometimes guilty in fact, though legally innocent.) Is this also true in dramas that play out in real court rooms?

ST: Well, there isn't a separate moral plane in the courtroom. Scumbags go free and basically good guys get convicted, but those facts are without much consequence in the law.

SL: You said once that of the many historical events that occurred during your life, Martin Luther King’s assassination was the most consequential. Why?

ST: King's death changed race relations for decades and vindicated impulses toward black separatism. Dr. King was also emerging as an important political leader in his own right, who could have forged the Obama coalition decades before.

SL: Knowing what you know about Barack Obama – who you’ve known since his early days in Chicago – what criminal justice reform do you think he would be most likely to push for during his Administration?

ST: Frankly, any such efforts are likely to await a second term and probably will meet resistance in Congress. As a pure guess, I imagine the President, left on his own, might soften the most draconian aspects of our drug laws.

SL: Can you talk a little bit about the relation between law and literature in your life. Is writing more fun than practicing law? More orderly? A rest from life-and-death drama of the courtroom?

ST: Both can be enormous fun, and a pain in the ass. There is more exhilaration in writing and more drudgery in the law, but they each have their shares of both qualities. My dream from childhood was to be a novelist, so there is a deep satisfaction in that life.

SL: What do you read for fun?

ST: Serious contemporary fiction, currently Wolf Hall by Hilary Mantel.

SL: Your band, Rock Bottom Remainders – whose members include writers Dave Barry, Mitch Albom and Amy Tan – scheduled a concert to benefit Haitian relief efforts. Did justice play a role in the band's decision to play for the benefit of the Haiti?

ST: We try to aid literacy efforts since readers have made us who we are. (I mean as writers, not lousy musicians). World Vision is committed, among other things, to rebuilding libraries in Haiti.

Judging and Personality: What Does a Judge’s Biography Tell Us?

2010-04-23T17:05:34+00:00

Justice Stevens modeled for cupid sculptures... Justice Douglas’ mother told her son he was no good… Not only was Justice Scalia an only child, he was the only offspring of his generation.

What difference do these – or any of the other biographical facts that make up a judge’s life – have to do with what kind a job he or she does on the High Court?

To address this question, the NYU Law Forum invited nationally prominent journalists, Joan Biskupic and Jeffrey Rosen, both of whom have written judicial biographies, and NYU Law Professor and former Supreme Court Law Clerk, Norman Dorsen to a Forum Conversation moderated by Vice Dean, Professor of Law and Author, Barry Friedman.

Joan Biskupic: How much does a Judge’s biography influence his or her judicical opinions? It’s not determinative in my mind, but it’s influential.

Let me mention a few things about Justice Scalia. As some of you know, he grew up in a first generation Sicilian home. His father came here from Palermo when he was 15 and did not know any English when he arrived. He was reluctant to speak with anyone until he had mastered the language. But he mastered it so well, he went on to get a PhD at Columbia in Romance Languages and taught at Brooklyn College for thirty years. Justice Scalia’s mother was quite a student herself though she only finished high school. Justice Scalia was an only child, born seven years into the marriage And, not only was he an only child, he was an only child he was the only offspring of his generation. You can imagine that this only child who had no cousins quickly became the center of attention. I think you see that even today.

Having come from a family that placed strong emphasis on excellence, Scalia went to Xavier Military School, an all boys school. He graduated first in his class there, and then graduated first in his class from Georgetown and went onto Harvard Law School.

His father was quite studious, always had his nose in a book and didn't abide any silliness. His mother's family, on the other side, was a great family of story tellers -- the patriarch in that family actually ran off with a woman, left Trenton where Scalia was growing up, ran off with the woman from New York and Scalia's surviving aunt and some of his kids and wife told me that there was a lot of tension between the two core families. The point is here's a man who -- in his daily personal life -- feels quite comfortable with tension and actually generates it quite often.

On the professional side, Scalia’s judicial opinions reflect much of his Executive Branch experience -- and his hostility towards Congress.

Scalia cut his teeth in Washington in the Ford and Nixon administrations in the Watergate Era. I found this great letter from the then Deputy Attorney General Larry Silverman. It was written to his son who, we now know as DC Circuit Judge Silverman, a few weeks before the indictment of Nixon's top aids in 1974. The letter says, "People high in the administration and high in the White House staff seem to be frantically looking to get out." Well, of course they were all worried about going down with the ship! But here's a 38 year old Scalia yearning to move up to a position of more responsibility. Fortunately for him, he got the position of Assistant to Attorney General spot for the Office of Legal Council just as Nixon was leaving. He ended up actually being confirmed by the Senate on Gerald Ford's watch in August of 1974. As you all remember, Nixon had to resign on August 8, 1974.

Scalia’s first assignment involved the question of who owns the Watergate tapes and other materials that were from the secret taping system and, again, he wrote a memo that favored the executive. Congress reversed this. At this critical post-Watergate time, there was a lot of struggle between the Executive and Legislative Branch. Scalia was a happy spokesman for the Administration and happily testified before the late Father Robert Drinan, the late Senator Edmund Muskie, in favor of Executive privilege. I think we definitely see traces of his early support for a strong executive it in his opinions now.

This post-Watergate era really matched the kind of person Scalia was then, and is now. His political savvy, natural combativeness and allegiance to the Executive were ideally suited for this time. And his authoritarian on the bench rooted in this rule oriented father who, as I said, taught Romance languages but also was a textualist who did a lot of translations and in keeping with his upbringing fostered this concern for the erosion of the Executive Branch and encroachments on the Presidency. When I went back and read what he wrote in his concurring opinion in Citizens United, I saw a certain attitude toward Congress that has emerged in many of his opinions.

Jeffrey Rosen: Personality matters, but it is hard to describe exactly how it matters. Joan identified two different aspects of personality. I want to argue that life experience is important but ultimately it’s less important than your relationship with your mommy and daddy.

So, here’s the argument—and this is a new argument by the way, so I’m happy to abandon it—lets think about Justice Stevens for a moment. I had the pleasure, the honor, of interviewing him in 2007 and was struck by the degree to which his life experience influenced some simple aspects of his judicial philosophy.

Stevens was appointed to the Court because he was the lead investigator in a corruption case in Chicago in 1969. The case involved a Judge alleged to have thrown a case in exchange for a bribe. Based on this experience, Stevens began to believe in the importance of government neutrality. If you look at his decisions, this belief in the importance of government neutrality connects his decisions on arts and gerrymandering, voting rights, and Clinton vs. Jones.

Another central experience in his life involves his having grown up as the son of the owner of the Stevens Hotel, one of the fanciest hotels in Chicago. There are bronze statues in the Stevens, which is now a Hilton, of cupids and they’re modeled on Stevens and his younger brother. Very fine looking statues, they are.

Stevens experienced a big trauma in his early years. His father, who he loved, was accused of corruption and was convicted. The conviction was overturned on the grounds that it was without merit. But Stevens took from that experience a fear about the way that the criminal justice system can go wrong, a concern about the unjustly accused, and, as a result, has voted for criminal defendants more than any other judge on the Rehnquist and Robert Court.

A final life experience that very much influenced Stevens was his service in World War II. He was a code breaker. He analyzed intercepted messages suggesting General Yamamoto flight patterns, and, as a result Yamamoto was assassinated Stevens knew of Yamamoto, who was friends with many American officers and he felt that there was a great difference between a targeted, premeditative assassination and a trial in which people might or might not be convicted. As a result, he became much more skeptical about the death penalty and concerned about fair procedures and he traces that concern back to that experience.

So there are three was in which Stevens’ life experiences influenced his judicial philosophy. But not everyone reacts to life experiences in the same way.

Think about war service—on the one hand you have people like Chief Justice Marshall, for him the war was central to his life, like Justice Stevens he said, “After war I came to see America as my country, my Congress and my government.” By contrast, there are other Justices who served in war and took a very different lesson from it. William O. Douglas served in the kind of ROTC camp briefly, but long enough to get buried in Arlington Cemetery. Far from being a sort-of patriot in the Stevens-Marshall mode, he was a narcissistic self-centered Justice who spent most of his time running for President. He wanted to be President, as his friend Tommy Corcoran said “more than Don Quixote wanted Dulcinea”. And he kept running. Why did he keep running for president in a way that undermined his Judicial decisions—and Norman I know you’re going to defend him, I’m being mean here—but Douglas was more concerned about his political ambitions than about the Court. Well, this came from this Oedipal ritual that he had with his mother who sat him down before he went to bed every night when he was young and told him he could never be as good as his father, but, might be as smart; then she recited a Scottish poem and told him he had to be President. Hello! Calling Dr. Freud!

So what does this mean about the next Justice? Obama said he wanted someone with political savvy. The nominee doesn’t have to be a politician but someone who can win over Kennedy and operate well behind the scenes. There are different kinds of politicians; some are more successful than other based partly on their upbringing and temperaments. There are failed politicians like Salmon Chase or Fred Vinson who were flawed because of their personality conflicts. Chase was always running for President and Vinson was too much of a crony of Truman. Or successful politicians like Warren and O’Conner who really took from their legislative experiences the ability to get along with people and bring the different sides together. For these reasons, I hope that all the people busily vetting the next Justice look not only at their plans, personal lives, marital histories, and all the big issues that arise during confirmation hearings, but also look very closely at their relationship with mommy and daddy.

Norman Dorsen: I’ve written about several Supreme Court Justices, including my former boss, Justice Harlan, Chief Justice Wong, Justices Black, Douglas and Brennan. My interest in the subject got serious when a former colleague and I organized a national conference on judicial biographies in May 1995. It was a large conference and many prominent biographers of Supreme Court Justices were present.

Then something happened which can only be described as a Godsend to conference organizers. Judge Richard Posner, who had written a small book about Justice Cardozo, was the first scheduled speaker. He took the occasion not to praise, but to condemn the judicial biography. He thoroughly trashed the entire genre. And in particular he rejected its usefulness in understanding the Justices and the Supreme Court. He began by dividing all biography -- including the judicial biography -- into four categories: those that cater to curiosity; those that are designed to debunk or glorify a person; those that he called scientific, by such-and-such a person, did so-and-so; and finally essentialist biographies which seek to reveal the inner or true person that is the essential self. He then went on to suggest that there were enormous, and in his view, usually insurmountable obstacles to biography in general.

Among other things he said, “Ideological biographies have an uneasy relation to truth. Essentialist biographies are incoherent because the essential self is a fiction—even if there is an essential self, it is far from clear that it generates whatever amount of subject interests us or insight into the subjects work product. And finally, like history, biography is plagued by the hindsight problem. We know how things have turned out, how our life has turned out, but we have no possible knowledge of how they would have turned out if something had been different.”

Posner went on to assert that the general problems of biography also exist in judicial biography and that there are additional problems that exist there.

1) Judicial biographies have a tendency to morph into histories of the Supreme Court.

2) Few Justices have had interesting lives.

Posner said that Oliver Wendell Holmes was the conspicuous exception. Most biographers are devoted to applauding the subject’s judicial philosophy. Most judicial biographies are written by and for lawyers who tend to be unduly deferential to judges. Lawyers are not usually trained or experienced to write a good biography. And finally, judicial biographies are typically costly because the authors could have written many useful law review articles and course studies over the same time.

Posner’s talk naturally made the conference a smashing success. Most vigorously disputed him, a few supported him or raised questions. Those who opposed him gave several examples of consistencies between a Justice’s life and his judicial views: Justice Lewis Brandies co-authored a leading article on the right to privacy in 1890 and as a Justice he wrote strong Fourth Amendment opinions glorifying the importance of personal privacy, although a different aspect of the right than his article discussed. Justice Felix Frankfurter is famous for philosophy of judicial restraint, he took activist liberal positions on academic freedom, he had been a law professor for most of his career, on the establishment laws supporting separation of church and state. As a Jew he was sensitive to the power and influence of the dominate Christian Religion, and on privacy as a disciple and close friend of Brandeis. Justice Tom Clark, a former U.S. Attorney General, almost always supported the U.S. government’s position, rather the case involved anti-trust law, national security, criminal law or something else. Justice Sandra Day O’Conner, a former State Legislator and State Judge, aggressively favored States in federalism cases although Bush v. Gore is a notable exception. And although for the first twenty years on the Court she was an experienced, extremely reliable member of the conservative block, led first by Chief Justice Burger and then by Chief Justice Rehnquist, she almost invariably supported the rights of women during this entire period.

But the evidence is not all on one side. Here are a few contrary examples of Justices who departed in later live from their earlier selves: Justice Hugo Black was a member of the Alabama Ku Klux Klan in the 1920s, now he became a—and maybe the—leading advocate for civil rights as a judge. Justice William O. Douglas was raised poor and had to overcome physical problems as a boy to out door exercise. During his judicial career, he strongly favored the rights of poor people and environmental causes. Justice Robert Jackson was a former Attorney General. Both he and former Attorney General Tom Clark were very close to their Presidents Roosevelt and Truman, who appointed Clark, and in that role supported broad Presidential power. Within a crucial war powers case, they voted to invalidate Truman’s seizure of the nations steel mills during the Korean War, rejecting the President’s claim of national security. Chief Justice Warren was a law and order governor of California and as California Attorney General he enthusiastically supported the removal of Japanese-Americans in California during World War II and containing them in camps in the interior. But Warren joined or wrote many liberal criminal justice opinions as well as many other liberal opinions during his tenor on the court. Incidentally, Warren apologized later while delivering a James Madison lecture at NYU Law School to the outrages against Japanese-Americans. Finally, Clarence Thomas, an African American and beneficiary of Affirmative Action throughout his life has opposed such programs as a Justice, not to mention his rejection of many other liberal positions. So perhaps the biographies of Justices are more difficult to pigeonhole than appears at first thought.

In light of this, I will raise a few questions about Justice Stevens that biographers may or may not be able to answer. I believe Justice Stevens has written more solo dissents then any other Justice in recent times, and maybe ever. Why? Is this a reflection of that same concern for craft and of getting it right? Or are the solo dissents a reflection of an individualistic or even ornery nature that makes him unable to accept an otherwise unanimous decision. Second, how, if at all, is Stevens’ Judicial performance affected by his many years as a practicing lawyer, years which he often refers to privately as his more important professional experience. Third, in last Sunday’s New York Times, Linda Greenhouse, formally the paper’s Supreme Court correspondent, attributes Stevens’ change from a moderate-centrist, often on the conservative side of cases when he joined the Court in 1976, to his current status, in her words, “as the leader of the Court’s remaining liberals”. Greenhouse, and Stevens himself, attribute this evolution to his ability to learn on the job. But is this a sufficient explanation?

There are least two other notable examples of Republican appointees in the last years moving towards liberalism some years after joining the Court. I refer to Justice Black now, and less well known, Chief Justice Warren. Was learning on the job what happened to them? Or are there other explanations? And what exactly does ‘learning on the job’ mean? Finally, does Justice Stevens upper-class social background help answer these and other questions about his jurisprudence? He is one of relatively few patrician Justices of the 20^th Century who include Oliver Wendell Holmes, William Howard Taft, Charles Evans Hughes, and John Marshall Harlan. Does class standing work in the same way for all of them? And how? –Does it provide extra self-confidence, or something else? Or is it irrelevant? Perhaps the biography on Justice Stevens will answer all of these.

Joan Biskupic: Like Jeff, I have been fortunate to interview Justice Stevens a couple times and have a lot of respect for him. When I talked to him recently, I asked him what he thought the next Justice should have. This was the week before he announced, but he talked about his own trial experience, and the fact that he was a regular lawyer. He talked about his having done legislative work. At one point, he also achieved the highest grades in Northwestern’s history. They changed their grading system, but for a long time he held this record. Given his very privileged background, the fact that he was secure with himself as a smart individual, made it easier for him to maneuver. Jeff and I have both observed Justices who come on as a little bit anxious about their standing. I said to Scalia the same week before Justice Stevens announced his retirement, “I thought you and Justice Stevens are a kind of match in legislative history and intellectual approach to law.’ And he said, “Yeah, I think he’s about my match. He might be as smart as me.”

Jeffrey Rosen: He talked to me about why he filed so many dissents and thought it came out of that commission of 1969 experience. The judge who was accused of throwing out the trial was on a case where there was a third judge who was going to dissent and expose the corruption. He was persuaded not to in the interest of collegiality and Stevens thought had he dissented the whole scandal would have been avoided. As a result, Stevens believes that whenever he disagrees with his colleagues he has a duty to say so.

Barry Friedman: Felix Frankfurter was this liberal activist who essentially became a spokesperson for Judicial restraint. Why? I have a theory about why that was which connects into Justice Scalia.

I always thought that Justice Frankfurter suffered from being not American enough. He was always conscious that he wasn't born here, and that he was Jewish, and had to overcome that, and, in his opinions he worked a little too hard to prove his 'Americanism'. I've often thought that Justice Scalia, at some level, though he's proud of his Italian-American heritage, suffers from that too and works a little too hard to defend the government and the status-quo on those terms?

Norman Dorsen: Interesting. I hope you'll forgive me for saying, I knew Justice Frankfurter very well. He arrived in this country age eleven not speaking a word of English. He was first in his class at Harvard Law all three years, about eight years later. People forget about Frankfurter that he, like Brandeis and Holmes, opposed an activist Supreme Court during the era of Lochner. Brandeis even went so far--and Frankfurter mimicked him--to say they regretted that the due process laws was ever within the Constitution--because it was being used in economic and social legislation by the four horsemen and there were others besides them. Frankfurter was a founder of the American Civil Liberties Union, was on the National Council of the American Civil Liberties Union. But, when he got on the Court he reverted to his former self. In the ACLU movement at the time was a man named Roger Baldwin, who was the principle organizer. After the Flag Salute Cases in which Frankfurter alone dissented, he went down and spoke to Frankfurter who he'd known for thirty-five years and said "Felix, we thought you were going to be the greatest liberal Justice in the history of the Supreme Court." Felix Frankfurter's answer to that was, "I guess none of you knew me well enough."

Joan Biskupic: In terms of ethnic defensiveness, Justice Scalia really wanted to go to Princeton. He was born Trenton, but grew up in Queens and it was his dream to go to Princeton. He didn’t get in -- even though he was first in his class and he had gotten one of those fancy Navy Scholarships they had back in the old days which would have enabled him to get a free ride anywhere. He ended up at Georgetown for Undergrad. He said "I guess they just didn't want an Italian boy from Queens."

There were a couple other things he said during the course of my many interviews with him that suggested that he remembered what that was like. Remember, the Italians were one of the last sets of European immigrants to come over and his father came over, obviously, just as a teenager himself. So he grew up in a time when he was aware of some discrimination and during his hearings, believe it or not, when he was being pinned down about his views on Affirmative Action, he evoked his own Italian heritage and said, "If I somehow took a bad view of racial minorities it would be a form of self-hate." None of the Senators challenged him on that. I couldn't believe it. He was saying essentially, 'I'm close to a racial minority myself.' But Ed Hess and Ronald Reagan were enamored with his first-generation story and in a lot of ways it was the fact that he was Italian, and would be the first Italian on the Supreme Court, helped him get the position.

Barry Friedman: There are many examples of private lawyers who went on to serve on the Court. I wonder whether that makes sense – in light of what the Court does. Or, if it’s not such a good idea. Or whether, in fact, what the Court does, and the cases it takes reflects the fact that it doesn’t have a bench full of people who were ordinary lawyers in one sort of setting or another. Any sense of that?

Joan Biskupic: That’s true. There are so few of them up there, like Justice Stevens, who would have had to go done to a Court House and actually filed papers. Justice O’Conner also brought the legislative experience. But it does get them closer to things. Also, I think there is something to be said for what branch of government you are affiliated with when you were a government lawyer.

Justice Stevens said to me, “It’s very much minimized in my biography but I did work for,” I think it was, “the Senate Judiciary Committee on anti-trust issues”. And Justice Briar was certainly influenced by work he did for Senator Kennedy on Judiciary issues. They’re inside. They see how laws are made and, this, in turn, informs how they interpret the laws. But when you think about everything they rule on, you know, the big hot-shot constitutional issues that we like to write about isn’t the bread and butter of this Court. The bread and butter issues before this Court tends to involve things that will then affect the people who go to the Court Houses and actually file There’s some value in having your eyes open to that.

Norman Dorsen: Let me tell you about something Justice Harlan said to me when I was a law clerk—a long time ago, ’57-’58. Harlan said, “Now, we have a lot of people from different backgrounds here. We have people who are from state government like Brennan. We have people like Warren. We have people like Black and Frankfurter who were mostly academics. The main thing, in my opinion, for a good Court is variety, the inclusion of people from different backgrounds. Every one of those people bring something distinctive they talk about a case.” One of the dangers of the present situation is that the dominate part of the backgrounds of almost all the Justices is their time on the bench and that inures them, as Joan said, from being closer to the reality of what happens on the ground.

Jeffrey Rosen: That is a concern. But, when you think about what the missing element of ideological diversity on this Court, I think I would point to the fact that there’s not a single economic populous. William O. Douglas used to say: “I want to bend the law against the corporations and in favor of the environment.” This in part reflects the background of the Justices and suggests it is not just about being a lawyer or a judge, it’s what kind of law you practice. Most of the liberal and conservative Justices on the Roberts Court are quite pro-business and this reflects their backgrounds. Roberts represented the U.S. Chambers of Commerce while he was at Hogan & Hartson. Justice Breyer taught anti-trust at Harvard. Justice Ginsburg taught civil procedure. Stevens was an anti-trust lawyer, just as Justice Sotomayor was a corporate lawyer. There is not a single fire-breathing, Hugo Black or William O. Douglas guy who wants to do what President Obama said he hoped a Justice would do, which is to recognize the affect law has on real people, and, side with the powerless, not the powerful.

These remarks were adapted, with permission from the speakers, from an NYU Law Forum discussion on April 14, 2010.

Joan Biskupic’s latest book is American Original: The Life and Constitution of Justice Antonin Scalia.

Jeffrey Rosen is the author of The Supreme Court: The Personalities and Rivalries That Defined America.

Norman Dorsen’s many titles include Our Endangered Rights.

Barry Friedman is the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.