Thursday, April 2, 2020

Passover And The Plague Of Trump

Three thousand years of beautiful tradition, from Moses to Sandy Koufax.  -- The Big Lebowski
Passover is a celebration of the liberation of the Jewish people from Egypt three thousand years ago. We've been telling and re-telling the story ever since -- including many times over the centuries where we have had to improvise in the face of danger and uncertainty.  It is a story that continues to resonate with us – especially during dark times -- because, as Jews do, we ask questions, search for answers, and try to connect the ancient story of overcoming hardship to our lives, our experiences and the society we live in today.  This year some of us will be lucky enough to be together with our families and to have the wherewithal to hold virtual seders with our loved ones who are sheltering in place elsewhere.  Others will not.

The Passover story is a universal story of liberation that not only reminds us that Jews were not always free, but challenges us to recognize that others throughout the world have suffered from and continue to struggle against tyranny in its many forms.  Indeed, there are now more displaced people around the world than at any time in recorded history, and there are even greater numbers of people at risk because of the corona virus.  This is their story too.  And so on Passover we not only put ourselves in the shoes – sandals, more likely – of the Hebrew slaves, but we stand with all who seek freedom, dignity, health and safety.

Some like Schmuel Rosen, who wrote an op-ed in the New York Times a few years ago, believe that the seder shouldn't be politicized -- that bringing contemporary politics into the mix of ritual and tradition trivializes this sacred festival.  But the Passover story is not an apolitical one.  It is about speaking truth to power, it is about how an oppressed people find and build power in their quest for freedom, and it is ultimately about finding solidarity with the stranger and those who continue to be oppressed.  I don't see how we can meaningfully celebrate our story of freedom and redemption without reflecting on how the current administration is undermining social justice and putting so many of us in harm's way, particularly those who already lack essential resources and community support.

Jonathan Chait responded to Rosen by pointing out that "this would not be such a problem if the sitting president did not bear such an uncanny resemblance to a villain from a traditional Jewish narrative. Like the Pharaoh, Trump is a builder fond of exploitative labor practices and an arch-nationalist, with a nasty habit of making deals then welching on his side of the bargain."  And, more recently, Trump, like the Pharaoh has been confronted with a deadly plague and made things worse, refusing to take even the most fundamental steps to thwart it.  (Pharaoh needed to let people go; Trump needed to get them to stay [at home].)

In the context of Trump's willfully ignorant and unconscionably inept response to the outbreak of the corona virus, Sarah Kendzior explains how nothing matters to him:  "not only in the sense that the things that matter to other people, like love and loss, do not matter to him. Nothingness itself matters: Destruction and annihilation are what he craves."  And so, "[f]or months, Mr. Trump has done little to stop the coronavirus from spreading throughout the U.S., creating a death toll that grows rapidly every day. As citizens self-isolate, he refuses to supply federal funds to states for the much-needed medical equipment, such as masks or ventilators ... This is who Mr. Trump is, who he always was. In a time when everything is changing, you can rely on Mr. Trump’s apathy to suffering."

It is Trump, himself, who is a plague on this country and on the world.  He rose to political power by promoting a racist lie about President Obama and then demonizing Mexicans and Muslims.  He continues to exploit our Nation's darkest and most racist tendencies, inspiring and encouraging white nationalists and anti-Semites.  He has unleashed the federal government on undocumented immigrants, breaking up families with unspeakable malice and sweeping up hard-working, law-abiding, long-standing residents.  Now he is scapegoating "others" for the spread of the corona virus when his abject failure of leadership is at its root, while using the fear of the virus's spread to further clamp down on immigrants and asylum seekers.  Meanwhile, with extraordinary numbers of people getting sick, his administration continues its efforts to restrict access to health care.  Most recently, Trump callously refused to reopen Affordable Care Act enrollment so that the uninsured -- including the vast numbers of recently unemployed -- can get much-needed assistance with rising medical costs.

In short, Trump continues to aggressively pursue policies that cause unrelenting hardship to the most marginalized and vulnerable in our society.  As Adam Serwer stated in a much-quoted essay, "the Trump era is such a whirlwind of cruelty that it can be hard to keep track" --  indeed, for Trump, "the cruelty is the point."  But we have to keep track of the cruelty, the corruption and the lack of human decency, which are having increasingly devastating consequences.

As Chait noted, Passover commemorates not only "a minority group’s survival against persecution, [but] contain[s] larger warnings about the kinds of conditions that give rise to such persecution."  If Passover isn't a time for speaking out against injustice and calling out today's tyrants and their enablers, then, to paraphrase that great Jewish scholar Alvy Singer, "what's the point?"

The original version of this post was published on April 11, 2017.  

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Wednesday, March 4, 2020

Super Tuesday Post Mortem

So if you leave with only one thing, it must be this: Choose to fight only righteous fights, because then when things get tough — and they will — you will know that there is only one option ahead of you. Nevertheless, you must persist.  -- Elizabeth Warren, March 5, 2020
With the notable exception of Barack Obama, no one I've supported to win the Democratic primary has ever won it (except for George McGovern when I was 12 -- and that didn't turn out so well).  And here I am again.  Elizabeth Warren is/was my candidate -- and Barack included, I have never felt more passionate about a candidate or believed more strongly about their strength, brilliance, competence and sincerity -- ever.  I think she not only could have crushed the malevolent orange shit-gibbon in the general election (like she unmercifully fileted Bloomberg), but would have gone on to be a great president. (See Why Elizabeth Warren Would Be The Best President)

As Rebecca Solnit put it: "Perhaps Warren's greatest strength is her commitment to listening and listening to many constituencies; she is a candidate speeding up the journey of ideas by making space to hear and plans that respond to what she heard. By shortening the distance between the grassroots and the center of power." Jodi Jacobson is right:  Warren is "once in a lifetime. She not only knows how to wield power, she is unafraid of doing so. She knows how government works and has worked it to our advantage. She has moral clarity. She has the best plans for addressing debt, bank corruption, corporate corruption, government corruption, climate crises, race and class analyses, the goddamn coronavirus epidemic and everything else you can imagine. SHE GETS SHIT DONE."

Despite all this Warren couldn't seem to gain traction, particularly on what should be the most compelling issue facing the country -- corruption and the erosion of democracy in the Age of Trump.  I wholeheartedly agree with her that we can't address other critical issues from climate change to gun control until we deal with the corrosive effects of corruption in Washington and the corrupting power of wealth.  But, alas, it is not to be.  There were perhaps some strategic missteps, but I think it was a combination of a whole lot of misogyny, a panic-stricken electorate fleeing to the perceived safety of the center, an "establishment" -- in the media and the Party -- that reinforced the nonsensical (and misogynist) concept of "electability," and the mainstream media's incomprehensible erasure of her that doomed her candidacy.

Charles Pierce nails it:  "This is not a country that is ready for what she called, endlessly, 'big, structural change.'  This is a country fearful of any kind of change at all, a country longing for a simpler time—which, these days, does not mean the flush 1950s or the pastoral 1850s, but 2015. The election of Donald Trump has lodged in so many minds a longing for the status quo ante that there’s no room for intelligent experimentation."  As Pierce says, "we have been rendered such a timorous people that even someone as open and lively and welcoming as Elizabeth Warren was considered too much of a risk."  She will, of course, remain a formidable leader and critical progressive voice, but I will always feel an enormous sense of loss for what could and should have been.

I've liked Bernie since he was first elected mayor when I was a senior in college in Burlington, VT.  I wrote admirably about him on this blog ten years ago.  (See Vermont's Finest)  He has an inspiring, compelling message about inequality that should resonate across multiple demographics.  But as Tuesday demonstrated, he doesn't seem able to expand his base to include African Americans -- the most critical of Democratic voters (although he has impressively garnered support from Latinx communities) -- and his key strategy of energizing new, young voters seems to be flailing.  And, yes, his abusive, divisive supporters, including those who have official positions high in the campaign, are dangerously alienating wide swaths of progressive-minded people.

But that leaves Biden -- who I still can't believe has parlayed Jim Clyburn's South Carolina endorsement into front-runner status.  The dude can rarely complete a coherent thought, much less a sentence.  How bizarre that all those debates I suffered through in which he seemed so tired and lost didn't matter. (I want those hours back.)  He barely campaigned, instead relying on Obama's coattails (notwithstanding Obama's silence) -- and it's fucking working.  I think he's an awful candidate who is not only cognitively compromised but has never really reckoned with much of his record, in particular, his unforgivable performance as chair of the Judiciary Committee that humiliated Anita Hill and put Clarence Thomas on the Supreme Court. (See Joe Biden's "Apology" To Anita Hill Is Too Little, Too Late And Too Lame).  I believe he is dangerously naive when it comes to the perfidy of the Republican Party, which is baffling given he was Obama's Vice President when Merrick Garland was denied a confirmation vote, not to mention their continued bad-faith Ukraine investigation.

I feel that those who are certain that Biden is the most electable candidate were also sure that Hillary Clinton would win, as would John Kerry and Al Gore.  Are we really going to do this again?  Are we really going to choose our nominee based on fear.  It shows a remarkable lack of imagination, a failure to understand that we are living in a far different world than we were living in even four years ago.  We need someone who can capture the zeitgeist, energize voters and articulate why Trump is such a danger to our survival.  I seriously doubt that person is Joe Biden, who just wants to return us an imagined normalcy -- to the halcyon days of bipartisanship and smoked-filled rooms.  Maybe it could be Bernie Sanders, but he still hasn't shown the ability to embrace a wider constituency.  But what the fuck do I know?

I do know that it is critical that the nominee, whoever it is, must pick a running mate who can actually capture the zeitgeist -- someone who can begin to transform the Party away from one that is still led by old white men.  It needs to be a woman.  It needs to be a person of color.  It needs to be someone who is brilliant and vibrant and progressive.  Stacey Abrams seems the obvious choice.  I could get excited about that.  I'm sure there are others.

At bottom, we need to enthusiastically support whoever the candidate is, no matter how flawed.  No more of this purity bullshit.  (See #NeverNader: A Reminder About The Perils Of Purity)  Yes, I love Elizabeth Warren.  I do not love Bernie or Biden.  But it doesn't matter.  It's time to retire that tired old cliche about how Democrats fall in love, but Republicans fall in line.  We don't have to love them.  We have to get in line and do whatever we can to win in November.

Monday, August 5, 2019

The Democratic Presidential Candidates Need To Unite Behind Common Principles

Viewers watching the recent network-sponsored debates, with the focus on spectacle and conflict, could be forgiven for failing to absorb a key point missing from most of the coverage:  The Democrats generally agree on the goals for the United States that align with the majority of Americans, although they may not fully agree on how to reach them.  But it is the Republican Party and their leader who are dangerously out of touch.  It is they who are embracing white nationalism, condoning the separation of families at the border, reversing efforts to combat climate change and failing to reckon with the Russian attack on our elections.

There is plenty of time for the Democratic candidates to highlight their differences and challenge each other's policies and vision.  But not now.  These are not normal times and this is not a normal election.  We are facing an existential crisis and the Democrats need to unite to demonstrate, collectively, what is at stake.  They should sign a statement of common principles in order to illustrate the stark differences between the two parties on fundamental principles that often get muddied in the daily discourse.  Such a document would demonstrate why the 2020 election is so critical.

Perhaps something like this:

1.  We condemn white nationalism, and Trump's rhetoric that has emboldened a white nationalist movement.  We support common sense gun control reform, including mandatory background checks and banning assault-style weapons.  

2.  We believe in the urgency of addressing global climate change and the irrefutable science that warns of the dire consequences of inaction.  We support rejoining the Paris Climate Accords immediately, and taking meaningful and substantial steps to reduce fossil fuel consumption in the United States.

3.  We are horrified by the cruelty of Trump's immigration policies which have led -- and continue to lead -- to the needless and tragic separation of families at our southern border, and have imposed extreme hardship and trauma on those seeking escape from violence and injustice in their home countries.  We support immigration reform that will protect our borders while ensuring that those seeking political asylum and refugee status are provided with a safe, fair and timely process.

4.  We believe in a woman's right to decide what to do with her own body, including the right to have an abortion.  We strongly oppose efforts by Republican lawmakers at the state and federal level to undermine Roe v. Wade, and place obstacles in the way of women -- particularly poor women -- seeking abortions.   We will pursue policies to ensure full access to abortion rights and reproductive health for all women. 

5.  We may differ on the details, but we believe that health care is a human right and oppose Republican attempts to sabotage Obamacare, including their pursuit of a federal lawsuit that would eliminate insurance for pre-existing conditions.  We all believe in policies aimed at expanding, not reducing, health care coverage for all Americans.

6.  United States intelligence agencies and the Mueller investigation have documented Russia's interference in our elections, which we consider an attack on our country.  Special Counsel Mueller has warned in his recent testimony that this remains a serious threat for 2020.  Yet, the president refuses to acknowledge it and the Senate Majority Leader refuses to allow bills on election integrity and security to come to the Senate floor for a vote.  We believe it is urgent to safeguard democracy by implementing immediately the measures that passed the House of Representatives.  In addition, we support efforts to stop voter suppression schemes, gerrymandering, and the proliferation of dark money that have undermined the time-honored principle of one person, one vote.

7.  The President of the United States has committed several documented instances of obstruction of justice that impeded the Special Counsel's investigation into Russia's interference with the 2016 election.  He was not indicted because of a Department of Justice policy that bars indictment of a sitting president.  That policy must be re-examined.  He also has refused to release his tax returns or divest from his many business entanglements with private and foreign interests. He and his administration are stone-walling legitimate attempts at Congressional oversight.   Trump's conduct is rife with conflicts of interest and he has lied to the American people over 10,000 times, according to a study by the Washington Post.  There has never been a more corrupt president and we believe it is far past time to restore dignity and the rule of law to the presidency.

Wednesday, July 31, 2019

Abandoning The Dog Whistle

You start out in 1954 by saying, "Ni***r, ni***r, ni***r." By 1968, you can't say "ni***r" — that hurts you. Backfires. So you say stuff like forced busing, states' rights and all that stuff. You're getting so abstract now [that] you're talking about cutting taxes, and all these things you're talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites. And subconsciously maybe that is part of it. I'm not saying that. But I'm saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me — because obviously sitting around saying, "We want to cut this," is much more abstract than even the busing thing, and a hell of a lot more abstract than "Ni***r, ni***r."  -- Lee Atwater, 1981
Turns out St. Ronnie was a racist.  A new audio that has been obtained of a conversation between then-Governor Reagan and another racist Republican, President Nixon, gives up the game.  To wit:
The day after the United Nations voted to recognize the People’s Republic of China, then–California Governor Ronald Reagan phoned President Richard Nixon at the White House and vented his frustration at the delegates who had sided against the United States. “Last night, I tell you, to watch that thing on television as I did,” Reagan said. “Yeah,” Nixon interjected. Reagan forged ahead with his complaint: “To see those, those monkeys from those African countries—damn them, they’re still uncomfortable wearing shoes!” Nixon gave a huge laugh.
But what was key to St. Ronnie's political success and that of his Party was that he kept his more overt racism on the down low.  He was, instead, the ultimate master of dog whistle politics.  Recall he launched his first presidential campaign in 1980 in Philadelphia, Mississippi, a place notorious for the 1964 slaying of three civil rights workers, and gave a speech about states' rights:  "I believe in states' rights.... I believe we have distorted the balance of our government today by giving powers that were never intended to be given in the Constitution to that federal establishment."  What Reagan was really signaling by talking about states' rights in that particular venue was that he was squarely on the side of White America.  It presaged his unceasing hostility to civil rights and voting rights, and his opposition to entitlements for the poor, particularly, African Americans, who he famously disparaged with classic dog whistles -- the "Cadillac-driving welfare queen" and the "strapping young buck" buying T-bone steaks with food stamps.

And ever since Republican politicians have become expert at using coded language to tap into anxiety of white middle and lower class Americans about losing ground culturally and economically to African Americans and immigrants.  Could there be a more perfect segue than from Reagan's presidency to Bush I's famous Willie Horton campaign ad?  Support for states' rights, calls for curbing federal assistance programs, blaming poverty on a "culture problem," referring to "illegal aliens," expressing fear of the spread of Shariah law, and framing opposition to LGBT rights as "religious liberty" all get the message across without sounding overtly racist, bigoted, xenophobic or homophobic.  The references to "Barack Hussein Obama" and relentless questions about Obama's birth certificate -- pioneered by one Donald J. Trump, of course -- tapped into the code as well. 

But Donald Trump discarded the dog whistle during his campaign in 2016.  He referred to Mexican immigrants as drug dealers and rapists.  He argued for discriminatory treatment of Muslims.  He asserted that the judge presiding over the Trump University fraud cases, born in Indiana but of Mexican heritage, must be biased against him in light of Trump's proposal to build a wall between the U.S. and Mexico.  

And then he won the presidency, anyway -- or, more likely, because of it.  And after that, he brought white nationalists into the White House to be key advisors and installed them in his cabinet.  He sought to impose a travel ban on Muslims.  He redirected a counter-terrorism program to focus solely on "radical Islamic extremism" and no longer target white supremacists. And when white nationalists armed with torches and Nazi flags felt emboldened by him to rally in Charlottesville, he talked about the fine people on both sides.  

And it has only gotten worse, most recently with unhinged racist attacks on members of Congress.  With such hate-filled vitriol aimed at people and communities of color being tweeted out almost daily, it is getting harder for Trump's fellow Republicans to defend him.  But they keep trying.  They have to because if they admit that Trump is racist, then they will have to concede that Trump policies that the Republican Party stands behind -- most notably his unconscionable border policies -- stem from racism and a white nationalist agenda rather than simply hard-line pragmatism.  In other words, Trump's racist rants have proven -- as if we really needed more proof -- that his efforts to thwart asylum seekers and radically reduce the number of refugees isn't about national security, border safety or providing a more fair and orderly process -- it's about keeping black and brown people out of the country.

Now that the truth is undeniable -- 51% in a recent poll believe Trump is racist -- Trump and his Republican enablers may hope that his unmitigated racism will energize a base that is otherwise low energy because it has not benefited from his purported economic miracle.  But it looks like there actually may be a whole lot fewer deplorables than Trump thinks there are.  Suburban voters, particularly white women, appear to be recoiling from Trump's white nationalism.  It seems that abandoning the dog whistle may very well backfire.  Maybe Trump should have tried to be more subtle like St. Ronnie.

Friday, June 28, 2019

The Mets: Amazing Then, Appalling Now

The Mets are really bad at honoring their history.  Given that the franchise is younger than me with only two World Series wins and a handful (or two) of iconic players, it shouldn't be that hard to celebrate our modest amount of glory.  But their stadium, Citi Field, completed in 2009 and patterned after old Ebbetts Field, was more of an homage to the Brooklyn Dodgers -- unless (with all due respect to Jackie Robinson) the big number 42 in the rotunda was meant to honor Butch Huskey or perhaps Ron Hodges.  Only two players' numbers have been retired. There are no statues of their stars as at other stadiums, much less a Monument Park like they have in the Bronx.

But with this being the 50th Anniversary of the magical, miraculous season of 1969, it seems that management has been shamed into doing the right thing.  They finally commissioned a statue for their greatest player, Tom Seaver, and also renamed the stadium's address 41 Seaver Way.  This weekend there are a host of festivities scheduled with commemorative giveaways and tributes, and many former players will be in attendance.  It should be a sweet, sentimental ride.

But painful too.  Painful because of the stark difference between the joyful highs of the 1969 season and the agonizing lows halfway through 2019.

I'm reminded of the 10th Anniversary.  The Mets honored the 1969 team at an Old Timers' Day game on July 14, 1979.  As the Met announcer, the great Bob Murphy, introduced members of the 69 squad, they each came out of the dugout and onto the field in their old uniforms -- a little tighter to be sure, but only ten years out, most of old Mets still looked more or less like ballplayers.  The fans went wild, boisterously cheering their beloved heroes, which included most of the heart of the team: Tommie Agee, Cleon Jones, Donn Clendenon, Jerry Grote, Art Shamsky, Ron Swoboda and several others.  Ed Kranepool, who was still on the Mets, joined his former mates.  They played a couple of innings against a team of aging stars from an earlier era, including several former Brooklyn Dodgers and New York Giants.  Gary Gentry started for the Mets (since the aces, Seaver and Jerry Koosman, were still active and playing elsewhere).  It wasn't too hard -- especially if you were in the upper deck -- to imagine having been transported back in time -- Agee pounded his glove before smoothly catching a fly ball, Cleon Jones crushed a double (albeit against a much older Ralph Branca) and Swoboda, swinging from his heels, smashed a ball against the outfield wall that was just foul.  I was there with my best pal, Michael, and we couldn't have been happier, lapping up the nostalgia.

And then it was time for the real game.  The 1979 version took the field with the likes of Willie Montanez, Richie Hebner and the detritus from the brutally painful Tom Seaver trade two years earlier.  We left before game began.  We simply couldn't bear the contrast with our cherished 1969 team.  (Indeed, the Mets would lose 99 games that year for a last place finish, although I looked it up and they actually won that day, with Tom Hausman outpitching the Giants' Vida Blue for one of his 15 career victories, aided by RBIs from the aforementioned detritus, Doug Flynn and Steve Henderson.)

Which brings us to today.  The Mets have again become unwatchable.  A poorly constructed roster assembled by their new general manager, baffling moves by their deer-in-the-headlights field manager, dysfunction throughout the organization and the bizarre mishandling of injuries, has undermined what looked to be an exciting season and a  promising future.  True, unlike the 79 team, there is some hope thanks to a core of exciting young players who have yet to be beaten down by the team's toxicity -- particularly, Pete Alonso, Jeff McNeil and Michael Conforto (and maybe Amed Rosario and the now-injured Brandon Nimmo).  And last year's Cy Young Award winner, Jacob DeGrom, is a true star.  But their starting pitching is wildly inconsistent, their defense is atrocious and their bullpen is a nightmare (more blown saves than saves!)  Every day seems to bring another gut-wrenching loss caused by a late inning defensive miscue and/or a bullpen meltdown.  And there is talk about trading once-promising players at the trading deadline for prospects, in other words, conceding that's its time to rebuild, again.

Every year Met fans hope that somehow everything will fall into place and we will become champions once more.  Such optimism (some would say delusional thinking) is surely due to our formative Met experience in 1969, which has led us to believe that a miracle can happen again.  And then every year, sometime in June or July, it becomes clear that this isn't going to be the year for a miracle.

And that's where we are.  There's nothing to do but enjoy the festivities, revel in the nostalgia for the 1969 team, and then go home.

Friday, May 24, 2019

This Shit Is Getting Real

The press is the enemy of the people and can be prosecuted for espionage if they publish leaked national security information.  Federal law enforcement officials are traitors who can be tried for treason for investigating a foreign power's efforts to interfere with U.S. elections if it leads to all (or some) of the president's men.  Moreover, the president's de facto personal attorney, formerly known as the Attorney General of the United States, has been given sweeping powers to declassify any intelligence from any agency regarding the impetus of that investigation and, as his prior conduct suggests, will selectively provide that information to the public in a way that favors the president and undermines the investigation.

Meanwhile, the president has instructed his staff -- past and present -- to ignore Congressional subpoenas and has refused to cooperate with any attempts at legitimate oversight by the Democratic-led House of Representatives.  Instead, he is relying on incendiary rhetoric and court challenges.  As to the latter, perhaps not fast enough to serve his purposes, he is stocking the federal judiciary at an unprecedented rate -- already over 100 judges and two Supreme Court justices  -- in the hope that this will provide a bulwark against challenges to his authoritarianism.  

This shit is getting real.

The Democrats in Congress sound the alarm on the one hand, but go back to business as usual on the other.  They rail about Trump's authoritarianism, corruption and unfitness for office, but believe it is more important to pass poll-tested bills in the House that the Senate will not even take up.  As Democrats act calmly, rationally and reasonably in the face of rampant abuses of power, they not only betray weakness and political calculation, but are nevertheless tarred as partisan enemies of the people.  

The cautious, disjointed response by the Democratic leadership since the Mueller Report was released that focuses on process, not substance, has allowed Trump, AG Barr and the GOP to create a false narrative that exonerates the president.  Sure it is outrageous that Barr is withholding the unredacted report and the administration is refusing to honor subpoenas -- and this must be challenged -- but we can't lose sight of the fact that there is already plenty in the redacted version, in the public record, and in Trump's continued authoritarian moves that warrant an impeachment inquiry -- an inquiry that could more easily obtain this information.

Democrats' avoidance of the "I" word signals that they don't believe there is enough to go forward.  If there isn't enough now -- if there isn't at least a prima facie case of high crimes and misdemeanors --what would it take, FFS?  Does Trump really have to stand in the middle of 5th Avenue and shoot someone?  Shall we take another poll to find out if it would be worth it then?

While Democrats dither, Trump's latest move of aggressively investigating the investigation will now put Democrats on the defensive, where holding impeachment hearings would have the opposite effect.

Once an impeachment inquiry is launched, a committee would subpoena documents and call witnesses (with heightened powers to compel) and weigh the evidence before proposing specific articles of impeachment to be considered by the House. If the House votes to impeach, then the proceedings would move to the Senate where, after a trial, it would take two-thirds of the Senate to remove him.  While it is virtually impossible at this point to envision the Senate Republicans putting country over party, they should be required to stand up in the face of what is sure to be overwhelming evidence and explain to the American people why they continue to support this palpably unfit miscreant.  And even if the Senate fails to convict, the process itself will impede Trump's ability to pursue his destructive agenda as well as cause him deep and lasting political damage.

Michelle Goldberg concludes in her recent New York Times op-ed:
The point of impeachment is not to remove Trump before the 2020 election. It is to make clear, in the starkest possible way, why Democrats believe he should be removed. The remainder of his term should be consumed by a formal, televised presentation of all the ways he’s disgraced his office. It’s true that were Trump to be re-elected after such a reckoning, he might be even further unleashed. But were Trump to be re-elected in the absence of impeachment, it would still be seen as a vindication for him, and would leave Democrats humiliated by their excess of caution.

Wednesday, May 22, 2019

Teach Your Children: The Essential Films

It is incumbent upon parents to teach their children core values: love, kindness, self-respect and respect for others, fairness and justice, family culture/tradition and tolerance for those of others, appreciation of nature and the need to protect the planet, openness to the spiritual or magical, cultivation of healthful habits and self-sufficiency, the power of literature and music, the importance of baseball, and how to eat a slice of pizza.  

Then there are the movies -- those essential 20th Century American films that our kids should be familiar with before moving on into the world.  These are not necessarily the ones you would see in a film class (although several you might) but those iconic gems that say something fundamental about ourselves and our culture.  Here's my initial attempt at a list that probably says more about me:

1.  Duck Soup, A Night at the Opera, Animal Crackers  
2.  Mr. Smith Goes to Washington
3.  Sullivan's Travels
4.  The Maltese Falcon, Casablanca, Treasure of Sierra Madre 
5.  Rear Window, North by Northwest, Vertigo
6.  The Searchers
7.  Bridge on the River Kwai
8.  Lawrence of Arabia
9.  The Manchurian Candidate 
10. To Kill A Mockingbird
11. The Man Who Shot Liberty Valance 
12. The Great Escape, The Guns of Navarone, Stalag 17
13. Dr. Strangelove  
14. The Pink Panther, A Shot in the Dark
15. The Graduate 
16. Planet of the Apes
17. Butch Cassidy and the Sundance Kid
18. Little Big Man
19. Harold and Maude
20. The Godfather & The Godfather II 
21. Young Frankenstein
22. Chinatown
23. One Flew Over the Cuckoo's Nest
24. Annie Hall 
25. Apocalypse Now
26. Airplane
27. This Is Spinal Tap, Waiting for Guffman
28. Do The Right Thing
29. My Cousin Vinny
30. Groundhog Day
31. The Big Lebowski

Thursday, May 2, 2019

The Frog And The Shit-Gibbon

With the daily onslaught of lies, corruption and abuse of power from the Trump Administration, it is not possible to maintain a meaningful perspective on the scope and magnitude of its horror.  The latest outrage is dutifully reported while the traditional media and the political establishment mostly give a collective shrug because it simply confirms the already baked-in view that the president is a lying, corrupt scoundrel.  And we move on to the next outrage the following day, one that would be a massive scandal in any other Administration.  There is no sense of urgency from Democratic leadership -- no sense that we are in a true national emergency -- no sense that without immediate, drastic action, the Administration will: (1) stall, obstruct and distract to avoid accountability for this term, and (2) use corrupt means (e.g., doubling down on voter suppression and foreign interference while investigating its political opponents) to remain in office for another term.

But never mind.  After all, it's Infrastructure Week (again).  So the Democratic leadership dutifully meets with Trump with a plan for a compromise infrastructure bill in its never-ending quest to appear reasonable and responsible in the face of insanity.  Couldn't they have slipped him a subpoena while they were there?  Sure, Nancy Pelosi, the House Majority Leader, says Trump's conduct is "worse than Nixon's," but she and her fellow Democrats don't act as if he is anything like Nixon.  They continue to argue about whether opening an impeachment inquiry would be politically prudent while dithering over requests for testimony and documents from Trump officials.  'OK,' they say, 'this is your last chance to appear voluntarily and if you don't, we will ... mock you by eating buckets of fried chicken.'  Maybe next week they will issue subpoenas or contempt citations.  Or maybe the week after that -- and if that doesn't work, maybe then they might revisit the impeachment question, but only after checking the polls.  Or, they'll just wait to see what happens in November 2020, as if that won't embolden Trump to turn up the malfeasance meter to 11.

Meanwhile, Trump dangerously promotes an egregious lie about Democrats relishing the execution of newborns, proposes new rules to create even greater hardship for political asylum seekers, and provides cover to racists by re-framing Charlottesville as nothing more than a good-faith dispute over a Civil War statue.  Trump's 10,000th lie milestone was greeted mostly with jokes from late night comedians rather than any kind of shock or outrage.  Indeed, the numbers no longer mean anything.  Neither it seems do facts.  He lies so often and so brazenly that he has successfully created an alternative universe for his base that cannot be penetrated by reason or logic.

And speaking of his base, Trump continues to encourage white nationalist-inspired violence -- not only in his speeches and rhetoric that give legitimacy and comfort to white supremacists and anti-semites, but in defunding and disbanding the Dept. of Homeland Security's branch that had previously focused on domestic terrorism.  Imagine the scandal that would have ensued if there had been spike in domestic terrorism during the Obama Administration after funding for domestic terrorism had been cut to assuage Obama's constituency.  For Trump, in the wake of more shootings by white supremacists, it is barely a one-day news story.

How about this frightening statistic:  the Senate has just confirmed Trump's 100th nominee to the federal bench, virtually all of whom are extremely young and extremely conservative, having been incubated in Federalist Society dogma.  These are lifetime appointments, jammed through the Judiciary Committee without meaningful hearings.  Along with stealing a Supreme Court majority, the Republicans are successfully skewing the entire federal judiciary for a generation or more.  The consequences are dire.  But the lack of any urgency to win back the Senate is demonstrated by the number of potentially formidable Democratic senatorial candidates deciding they are better off running for president.  This is madness.

Not surprisingly, the Mueller Report, augmented by AG Barr's creative interpretation of it, failed to fulfill the always unrealistic hope that our thoughts and prayers would be answered -- that there would finally be a definitive determination of Trump's perfidy that would inexorably lead to his removal.  Although the report itself provides incriminating bombshells and a tantalizing roadmap for further investigation -- indeed, impeachment -- by Congress, Barr did what he was undoubtedly appointed to do.  He provided -- and continues to provide -- the necessary sound bites and obfuscation for Trump to claim vindication.  It is plain, after Barr's remarkably disingenuous testimony, that Trump will not only use Barr and the DOJ as a shield to avoid any Congressional oversight, but -- like any good dictator -- as a sword to go after the investigators and Trump's political opponents.  Get ready for bogus but overly-reported "scandals" involving whichever Democratic presidential hopeful appears to be gaining traction.  First up: Joe Biden and the Ukraine.

This is all like the fable about the slow boiling of a frog -- where we, as the frog, fail to notice our doom because of the gradual heat being brought to bear.  The daily lies and reports of corruption and abuse of power slowly add up.  The drip, drip, drip of disclosures about Russia simply don't have the dramatic impact of having learned about all of it at once.  Had we been dropped in boiling water -- confronted with the sum total of Trump's malevolence  -- we surely would have collectively jumped.  That's where impeachment hearings would come in handy -- putting it all in one scalding pot.

There's another frog story -- the one about the frog and the scorpion, where the scorpion, after promising not to sting the frog if it carries the scorpion across the water, does so anyway, even though it meant that both the frog and scorpion would drown.  When the frog protests, the scorpion helplessly replies, "I can't help it, it's in my nature."

It is in Trump's nature to be willfully ignorant, to be cruel and to degrade and corrupt everything he touches. It is in his nature to not just lie but to make the truth meaningless.  It is in his nature to use threats, lawsuits and the levels of power at his disposal to avoid accountability.  And it is in his nature to to be an authoritarian bully.  The key is that we recognize the danger, amplify it and fight against it -- and to do so expeditiously -- and not allow ourselves to go down with him.

Tuesday, April 30, 2019

Joe Biden's "Apology" To Anita Hill Is Too Little, Too Late And Too Lame

This piece was originally written in 2017, but is unfortunately more relevant than ever.  Biden's inability -- still -- to come to grips with his responsibility, not only for the confirmation of Clarence Thomas to the Supreme Court, but for the rigged process he agreed to that isolated and humiliated Anita Hill, is deeply troubling as he trots out the Aw Shucks Kindly Uncle Joe routine on the campaign trail.  With both his non-apology to Anita Hill about how she was treated and his statements about not intending to creep out the women whose shoulders he rubbed and hair he sniffed, Biden repeatedly fails to distinguish between his purportedly benign intent and the far-from-benign impact.  In my view, this is a disqualifying blind spot.

Joe Biden was the chair of the Senate's Judiciary Committee during Clarence Thomas' confirmation hearings in 1991.  In contrast to his more recent incarnation as the beloved elder statesman and erstwhile sidekick to Barack Obama, Biden played a singular role in delivering Anita Hill into a lion's den of misogyny and ensuring that her testimony that Thomas sexually harassed her when she was in his employ at the Equal Employment Opportunity Commission would be ridiculed.

Biden was a well-ensconced member of the Old Boys' Network aka The United States Senate, and did his level best to be a neutral arbiter, which allowed the more aggressive, overtly-sexist Republicans to control the proceedings.  (Sound familiar?)  In his efforts to be unstintingly fair to Thomas -- to the detriment of Thomas' victims -- he repeatedly assured him that "you have the benefit of the doubt," despite the lack of any legal justification for such an assurance.  This was not a judicial proceeding, it was a confirmation hearing. 

Biden had the power to permit expert testimony on sexual harassment but he refused.   He had the power to restrain the insulting and humiliating questioning of Hill but failed to do so -- and got into the act himself (asking Hill about how she felt during an alleged sexually-charged interaction with Thomas, “Were you uncomfortable, were you embarrassed, did it not concern you?”) And, worst of all, he reached a private compromise with Republican senators -- a classic back room deal -- not to call witnesses who would have corroborated Hill, most importantly, Angela Wright, another former employee of Thomas at the EEOC who also claimed to have been sexually harassed by him. 

Thomas was confirmed by a painfully slim margin, 52–48, with the help of 11 Democrats.  Although Biden voted against Thomas, his shameful performance as Judiciary Chair is directly responsible for one of the most reactionary Supreme Court justices in U.S. history.

Now that we are seemingly at a watershed moment in which sexual misconduct by men in power is coming under scrutiny, questions about Clarence Thomas and how the sexual harassment allegations against him were addressed are getting a well-needed second look.

In an interview with Teen Vogue, Joe Biden was asked about his role in hearings.  He focused on his inability to control his "Republican friends," stating "my one regret is that I wasn’t able to tone down the attacks on her by some of my Republican friends. I mean, they really went after her. As much as I tried to intervene, I did not have the power to gavel them out of order. I tried to be like a judge and only allow a question that would be relevant to ask."

I'm gonna call bullshit.  First, Biden was not a judge, he was the chairman of the committee and certainly had the power to "gavel" the unwarranted attacks on Anita Hill as out of order.  But what Biden conveniently elides is his pivotal role ahead of the proceedings in rigging things in favor of the nominee in a way that would undermine the credibility of Anita Hill -- failing to set parameters for questions and failing to allow corroborating testimony.

Anita Hill recently told the Washington Post that she believes that Biden still doesn't get it -- that he fails to “take ownership of his role in what happened.” As she said:  "he also doesn’t understand that it wasn’t just that I felt it was not fair. It was that women were looking to the Senate Judiciary Committee and his leadership to really open the way to have these kinds of hearings. They should have been using best practices to show leadership on this issue on behalf of women’s equality. And they did just the opposite.”

Biden concludes in his Teen Vogue interview: "I wish I had been able to do more for Anita Hill.  I owe her an apology."  You sure do, Joe.

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Thursday, March 21, 2019

Time Begins On Opening Day

You spend a good piece of your life gripping a baseball, and in the end it turns out that it was the other way around all the time.  -- Jim Bouton
Thomas Boswell, the long-time sportswriter for the Washington Post, wrote a timeless piece collected in a book of the same name, Why Time Begins On Opening Day, published in 1984.  Boswell muses on the "resolute grasp" that baseball maintains for so many of us" and why our "affection for the game has held steady for decades, maybe even grown with age."  He asks what baseball is doing among our other "first-rate passions."  And, indeed, when one looks over the posts on this blog, it could seem incongruous to have baseball pieces interrupting the rants on politics and pleas for social justice. 

Boswell explains that "in contrast to the unwieldy world which we hold in common, baseball offers a kingdom built to human scale.  Its problems and questions are exactly our size.  Here we may come when we feel a need for a rooted point of reference."  It is not that baseball is an escape from reality, "it's merely one of our many refuges within the real where we try to create a sense of order on our own terms." 

This refuge has never seemed more urgent than this season. What Boswell wrote more than thirty years ago speaks volumes today:  "Born to an age where horror has become commonplace, where tragedy has, by its monotonous repetition, become a parody of sorrow, we need to fence off a few parks where humans try to be fair, where skill has some hope of reward, where absurdity has a harder time than usual getting a ticket."

Yet there are a growing number of naysayers.  There are those, including the current MLB Commissioner, who are determined to use various gimmicks and quick-fixes to address three purported problems with the game: 1) the umpires blow too many calls; 2) the pace of play is too torpid; and 3) pitchers are too dominant.

With regard to the first perceived problem, the solution appears to be not only more reliance on instant replay, but also an automated strike zone. What's next?  Robot umpires?  The original instant replay rule, designed to review home runs, made some sense.  New-fangled ballparks with unusual angles and idiosyncratic seating make it much more difficult to discern with the naked eye when a ball is actually hit out of the park.  But the success of the original rule has led to the inevitable slippery slope -- expanded replay into many more areas of the game.  And now, the possibility of replacing home plate umpires with an electronic strike zone.  Instant replay already upsets the flow of the game at pivotal moments.  But more significantly, it attempts to eliminate chance and human error, which are woven into the game's history where the best team doesn't always win.  There is the bad hop eluding a fielder that should have been an easy out, a bloop hit on a check-swing despite the pitch badly fooling the hitter, and, inevitably, the missed call from the umpire.  These are essential parts of the game and those who insist on perfection are missing the point.

The game is slow, but not TOO slow.  As Roger Angell puts it, "each inning of baseball's slow, searching time span, each game of its long season is essential to the disclosure of its truths."  But, fine, I'm willing to compromise -- shorter commercial breaks between innings, hitters staying in the batters box between pitches, a pitch clock, and restrictions on the number of mound visits the catcher can make.  But did we really need to do away with the intentional walk? The geniuses running Major League Baseball keep trying to remove its idiosyncratic charms under the guise of speeding its pace.  They need to slow down.

Fifty years ago, after the "Year of the Pitcher," the mound was lowered from a height of 15 inches to 10 inches to give pitchers less of an edge.  There is talk of lowering it further.  Or worse, moving the mound back, which arguably would help hitters, but probably would cause injuries to pitcher's arms.  One of the delightful, remarkable things about baseball is that for generations, the sacred measurements between bases (90 feet) and between the pitching rubber and home plate (60 feet, six inches) have remained the same no matter how players have grown in size and strength.  You can't mess with this.   Another proposal, apparently going into affect next year, is requiring relief pitchers to pitch to at least three batters or until the end of an inning.  This would prevent managers from using three or four relief specialists in an inning, which not only dampens the offense but does, admittedly, slow down the game in the late innings considerably.  I'm OK with this.  Just don't move the mound.
Behind many of these proposals seems to be an effort to accommodate purportedly impatient, distractible millennials who love basketball and football, but are bored by baseball.  But these fixes will not magically bring more fans to the ballpark. Making the game more robotic and removing the game's traditional quirks are self-defeating. (MLB should pour funds into youth baseball -- and fairly compensate minor leaguers -- if it truly wants to have a long-term impact.)  A few tweaks here and there are acceptable, but we need to have faith that baseball is just fine the way it is.  The arc of the baseball universe is long.  As Yogi or Casey or (actually) Bob Veale said, "good pitching will always stop good hitting and vice versa."  Sure, right now pitchers have the upper hand, there are more strikeouts, and fewer balls in play.  Eventually hitters will adjust, and the balance of power (literally) will shift.

Boswell reminds us how baseball "offers us pleasure and insight at so many levels and in so many forms."  There is history -- an "annual chapter each year since 1869."  At the ballpark itself there is "living theater and physical poetry."  And perhaps, "baseball gives us more pleasure, more gentle unobtrusive sustenance, away from the park than it does inside it," pouring over box scores, crunching statistics, debating players and teams with our cohorts, and watching games and highlights on TV.  "The ways that baseball insinuates itself into the empty corner, cheering up the odd hour, are almost too ingrained to notice."  Let's not fuck it up.

Wednesday, March 13, 2019

The Moratorium On California's Death Penalty Should Be Celebrated, But It Comes Too Late For Some

Thank you Gavin Newsom for imposing a moratorium on the death penalty in California. And thank you to all my friends, colleagues, comrades who worked so hard for so long to create the political space for him to make this happen. My thoughts go to the 13 men who were executed under this discriminatory, arbitrary and barbaric system that, at least for now, has been ground to a halt -- especially Tom.  This piece was originally titled The Arbitrary Execution of Tom Thompson, and was written on December 18, 2015.

*          *          *          *

I knew if I wanted to see Tom one last time I had to leave for the prison soon. It was already late in the afternoon and at 6:00 pm, he would be taken from the visiting area to the death watch cell for his last meal. There he would remain until 25 minutes before midnight when he would be led to the execution chamber next door. There wasn’t anything left for me to do anyway, so I left my San Francisco office and drove over the Golden Gate Bridge to San Quentin State Prison.

The parking lot to the East Gate of the prison is just a few yards from the San Francisco Bay. Even after countless visits the contrast between the sweeping vista of the coastline and the grim reality inside the prison’s peach colored concrete walls is striking. I passed through security and walked slowly down the long path leading to the Main Visiting Room. I was let in through the two sets of heavy doors, and saw Tom, surrounded by family and close friends, presiding over a gathering that could only be described as surreal. Tom had been on death row for fourteen years, and the prison guards who knew him well seemed as traumatized as everyone else. They were overly solicitous, awkward, almost apologetic. Instead of the usual vending machine fare there was a platter of cold cuts for sandwiches and sodas on a long table. Although in a matter of hours he was going to be strapped to a gurney and lethally injected with poison, it was Tom who was trying to keep things light, with the corny jokes and over-the-top impersonations – Steve Martin as the “Wild and Crazy Guy” and Mike Myers as Austin Powers – with which I had become all too familiar.

Behind his silliness, Tom was thoroughly depleted from being the center of a spectacle that surrounded him as the fifth man about to be executed in California since the death penalty was re-instituted in 1977. A physically healthy 43 year old was going through the process of dying, and it was disorienting and  unbearably stressful. He had been enduring emotionally-charged visits from his friends and loved ones, for whom he felt the need to constantly perform. He met often with me and other members of the legal team to approve a list of execution witnesses (he was entitled to five) and to be kept abreast of last minute developments – of which there were few. He had been under 24 hour surveillance from guards for the past five days, making sleep impossible. In accordance with prison rules, he had been stripped of his “non-legal property.” He had no reading or writing material. He was denied his art supplies, which he had used for surprisingly impressive paintings over the years, including a portrait of Billy Idol he had given me a few months earlier.

We had been preparing for this moment for far too long, having gone through a similar process one year earlier when, despite a stay of execution, prison personnel proceeded methodically with its execution protocol until, with six hours to spare, they were finally assured that the Supreme Court would not disturb the stay. There was not much left to say. Tom, although hampered by waist chains, enveloped me as best he could in a big bear hug, and thanked me for all I had done. He told me that I should feel proud about putting up such a good and righteous fight. I replied that it had been an honor to have worked with him. I exchanged tearful goodbyes with his sister and mother. I walked out of the prison and returned to my office where I continued to file court papers with little chance of success and railed to reporters about injustice. All to no avail. Six minutes after midnight on July 14, 1998, Tom Thompson was dead.

*          *          *          *

Tom Thompson had no criminal record or history of violence when he was tried for the murder of Ginger Fleischli in 1984.  He was found guilty of murder and sentenced to death based largely on the false testimony of jailhouse snitches and the failure of his trial lawyer to challenge the bogus evidence of rape invented by the prosecutor.  (The rape special-circumstance provided the basis for the death penalty.)

An explosive scandal involving the Orange County D.A.'s office has only recently shed light on the extent of the unethical behavior routinely engaged in by its prosecutors to secure death sentences.  And Michael Jacobs -- the prosecutor in Tom's case -- has been revealed to be one of the more notorious.  Jacobs was fired in 2001 for insubordination and dishonesty.  The litany of his misconduct over several cases includes presenting false testimony, using unreliable informants, and hiding exculpatory evidence -- all of which he did in Tom's case.  And there was more.  Jacobs used contradictory evidence and arguments in two separate trials to convict first Tom and then Tom's roommate, David Leitch -- the victim's former boyfriend and a man with a violent past -- on inconsistent theories.  The reliability of many other Orange County cases has been called into question since the D.A. scandal broke -- and one murder conviction based on the false testimony of one of the very same snitches who testified against Tom has been reversed.  Of course, this all comes too late for Tom.

There are approximately 750 men and women on death row in California.  Tom Thompson is one of 13 who have been executed since the death penalty was reinstated 40 years ago.  While others sentenced to death around the same time languished on death row (several of whom continue to languish), his case jumped to the head of the class for no discernible reason.  And then a series of safeguards designed to ensure that the death penalty is fairly and reliably imposed -- state and federal appellate review and clemency -- completely and utterly failed. 

All death sentences in California are automatically reviewed by the California Supreme Court.  Tom's appeal was heard in 1988, two years after three liberal justices were recalled by the voters and replaced by an ultra-conservative governor with ultra-conservative justices.  The Court was thereby transformed almost overnight from one that was appropriately open to reversing cases based on meritorious claims to one that essentially rubber-stamped death penalty cases by finding virtually every error alleged in virtually every case to be harmless.  Accordingly, Tom's conviction and sentence were affirmed.

The case then moved to federal court, where in 1995, Tom's death sentence and rape-related charges were reversed based on a finding of ineffective assistance of trial counsel for counsel's inexcusable failure to adequately rebut the snitch testimony and other evidence that purported to establish rape.  The state appealed this decision to the U.S. Court of Appeals for the Ninth Circuit. 

It is not much of an exaggeration to say that the composition of the randomly drawn three-judge panel in the federal appellate courts is the most important factor in determining the life and death of a condemned inmate.  If at least two of the judges on the panel are essentially liberal, the death penalty will likely be reversed; if they are conservative it usually will be upheld. It is simply luck of the draw and, unfortunately, Tom got a very, very bad draw.  Despite what at the time was a majority of liberal judges on the Ninth Circuit, all three judges on Tom’s panel were extremely conservative Reagan appointees.  It was therefore not surprising -- but wholly arbitrary -- when the panel reversed the district court's ruling in 1996.

To mitigate such arbitrariness is another important safeguard -- en banc review, in which an 11-judge Ninth Circuit panel has the option to review a 3-judge panel's ruling.  Court papers were filed requesting rehearing en banc, which can only be granted after one of the active judges who sits on the Ninth Circuit calls for a vote and a majority of those judges then vote in favor of rehearing. Given the number of liberal judges on the Ninth Circuit at that time it would be unusual for there not to at least be one judge calling for a vote in a death penalty case.  However, on March 6, 1997, an order issued stating that the request for en banc review was denied because not one judge asked for a vote to rehear the case. After the U.S. Supreme Court denied review, an execution date was set for August 5, 1997. 

In the months that followed, evidence surfaced that corroborated Tom's long-standing version of events -- that he and the victim had consensual sex on the night of her death.  This included a statement from Tom's roommate, David Leitch, that was never turned over to the defense.  Such evidence completely undermined the prosecutor's rape-murder theory and called into question the credibility and integrity of the prosecutor's entire case.   Unfortunately, presenting this new evidence was severely hampered by a federal law that had just been enacted in the wake of the Oklahoma City bombing.  The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") was designed to thwart "frivolous appeals" but it cast far too wide a net and created virtually insurmountable hurdles to presenting new claims in federal court.  Another problem was that the federal judge who had originally granted relief had passed away and the case was assigned to a far more conservative judge who was completely unreceptive to this new evidence and rejected the claim. 

Another purported safeguard is clemency, a process in which the governor is empowered to act when the judicial system breaks down.  No California governor since Ronald Reagan, however, has seen fit to grant clemency in a capital case, and in Tom's case, Governor Pete Wilson proved no exception. Despite powerful and emotional pleas from family and loved ones, the lack of any prior criminal history, testimonials from prison guards about Tom's exemplary conduct at San Quentin, and serious doubts raised regarding the fairness of the trial and the subsequent judicial proceedings, Wilson denied clemency.  He ultimately based his decision on nothing more than a determination that Tom could not prove his innocence ("But at the end of it all, I am absolutely confident that he raped and murdered Ginger Fleischli").

On August 3, 1997, one night before Tom's execution was scheduled to take place, an 11-judge en banc panel of the Ninth Circuit issued a dramatic order.  The court explained that it was taking the highly unusual step of ruling after its earlier denial of review because of “exceptional circumstances” caused by a malfunction in the court’s review process -- a glitch in the court's communication system that resulted in the failure of any judge voting to review the case en banc the first time -- and because “we are convinced that the panel committed fundamental errors of law that would result in a manifest injustice.” The Ninth Circuit then vacated the three-judge panel opinion, and reversed the death sentence, holding that trial counsel's ineffectiveness was prejudicial and that the prosecutor’s use of fundamentally inconsistent theories at Tom and David’s separate trials was fundamentally unfair.

The state sought review in the U.S. Supreme Court, while the prison proceeded with its execution protocol.  With six hours to spare, the Supreme Court refused the state's invitation to summarily reverse the Ninth Circuit and allow the execution to go forward.  But it did agree to hear the state's appeal on December 9, 1997. 

The grand stairway of 53 steps, the massive Corinthian marble columns, the grandeur of the Great Hall, and all the pomp and circumstance attending the Supreme Court are surely designed to give lawyers a sense of awe and wonder as they go through the red-curtained entrance into the courtroom and sit just a few short feet from the nine justices.  One comes completely down to earth, however, as it becomes clear that at least a majority of those justices intend to make sure one’s client is executed. This seemed like a foregone conclusion in Tom’s case. When the high court decides to intervene in a Ninth Circuit case that has reversed a death sentence it is usually not to approve its ruling.  And thus, another safeguard proved ephemeral.  On April 29, 1998, by a bare 5-to-4 majority, the Court reversed the Ninth Circuit and ordered it to reinstate Tom's death sentence. Justice Kennedy (a former Ninth Circuit judge, himself) wrote the majority opinion, finding a “grave abuse of discretion” in the Ninth Circuit’s handling of  the case, and stressed the importance of “finality” of state judgments. Thus, even though Tom was not at fault, the Court rejected Tom’s claims on the technicality that the Ninth Circuit had waited too long to grant en banc review.  The Court never even addressed the validity of Tom’s substantive claims.  A new execution date was set for July 14, 1998.

The last hope was the separate appeal of the federal judge's rejection of the newly discovered evidence of innocence.  The case was heard by the same en banc panel that had granted relief earlier, but the court was no longer receptive.  It seemed chastened by the lashing it had received by the Supreme Court and shackled by the barriers to relief imposed by AEDPA.  At 11:00 p.m., on July 11, 1998, the court denied relief. Tom was executed two nights later.

*          *          *          *

Tom Thompson was represented by a trial lawyer who failed to take the steps required to afford minimally competent representation in a capital case. He was convicted and sentenced to death in a county where a cynical prosecutor could pick and choose among jail inmates who were willing and able to manufacture evidence to support the prosecution’s theory of the case. His death sentence was affirmed by a state court that at the time refused to meaningfully review death penalty cases. Relief in federal court was first denied because he unluckily drew a conservative panel and later because of legal technicalities that had nothing to do with the merits of his claims. Despite obtaining new evidence that suggested he was innocent, Tom was precluded from obtaining a new trial because of insurmountable legal procedures and the paramount importance of closure.

Twenty years later, poor defense lawyers, unsavory prosecutors, disinterested courts and impenetrable procedural hurdles remain all too common elements in capital cases.  They are inherent aspects of an irreparably broken system.  Apart from the barbarity of the death penalty, the absence of meaningful safeguards to ensure that death sentences are not unreliably and arbitrarily imposed and carried out should be deeply disturbing to anyone who cares about fairness and justice. 

(Originally published on December 18, 2015; here are other pieces on Tom Thompson -- My Opposite and  Final Hours)