Wednesday, April 17, 2019

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 -- and it continues to resonate with us because, as Jews do, we ask questions, and then struggle to answer them as we try to connect the ancient story to our lives, our experiences and the society we live in today. Critically, our 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 here and throughout the world have also suffered from and continue to struggle against oppression in its many forms.  This is their story too.

Some like Schmuel Rosen, who wrote an op-ed in the New York Times last year, believe that the Passover Seder shouldn't be politicized -- that bringing contemporary politics into the mix of ritual and tradition trivializes this sacred festival.  But I don't see how we can meaningfully celebrate our story of freedom and redemption without reflecting on today's impediments to social justice. 

As Jonathan Chait pointed out, "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."   

Trump 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 scapegoating and 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 Justice Department on undocumented immigrants, breaking up families and sweeping up hard-working, law-abiding, long-standing residents.  In short, he is pursuing policies that cause fear and hardship to the most marginalized and vulnerable in our society.

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?"

This post was originally posted on April 11, 2017.  

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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.
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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)

Friday, March 8, 2019

Remembering Tom Seaver

"There is actually a good argument that Tom Seaver should be regarded as the greatest pitcher of all time ... Seaver pitched for eight losing teams, several of them really terrible, and four other teams which had losing records except when Seaver was on the mound."  —Bill James, The New Bill James Historical Baseball Abstract, 2001
For Met fans of a certain vintage -- those old enough to have rejoiced in the first of (only) two Met championships -- Tom Seaver will forever hold a special place in our hearts.  We love everyone from that team -- from the key players (Cleon Jones, Tommie Agree, Donn Clendenon, Jerry Koosman) to the more obscure (Rod Gaspar, Duffy Dyer, Jim McAndrew).  But Tom Seaver was on a different level altogether.

He wasn't just a great Met.  He was one of the greatest pitchers in Major League history.  And he was ours.  His pitching form was a thing of beauty -- both powerful and graceful.  He was called "The Franchise" because of how he transformed the Mets' identity, from a joke -- albeit a lovable one -- to World Series winner (until they became a less lovable joke once again).  He did it with his brilliant pitching and with his no-nonsense, brash professionalism. 

I treasured pretty much every start in those years -- watching on a black & white TV or listening on the radio or, occasionally, getting to see him live at Shea.  I would check out the box score in the paper the next day and diligently recalculate his E.R.A. after every game he pitched.

We all have our favorite Tom Seaver memory.  For many it is his near perfect game against the Cubs in 1969 or the 10-inning complete game victory in Game #4 of the 69 Series or any of the over 60 shutouts in which he simply dominated opposing hitters.  My favorite memory is being at Shea Stadium on April 22, 1970, when he tied what was then a record of 19 strikeouts in a game and set a record for striking out the last 10 hapless Padres hitters in a row.  Simply epic.

Yes, he changed the perception of the Mets, but even with the miraculous World Series win in 1969, they remained a feeble-hitting team (some things never change), and Seaver had to consistently pitch flawlessly to keep his team in games, often losing heartbreakers 2-1 or 1-0.  (Jake deGrom can relate -- but try doing it for a decade.)  Typical was 1971, when he led the league in ERA (1.76) and strikeouts (289 in 286 innings), pitched 21 complete games and still lost 10 games, going 20-10.   Had Seaver played with a decent team for the bulk of his career, his remarkable numbers would be off the charts.

And as a recent New York Time article pointed out, in stark contrast to the current game, where starting pitchers rarely go more than six or seven innings, Seaver excelled in finishing what he started, getting even better as the game wore on.  His lifetime ERA in the last three innings was 2.75, and in 1969, he pitched in the ninth inning 17 times without giving up a run.

Seaver continued to pitch brilliantly for a mostly awful team, and then, on June 15, 1977, came the "Midnight Massacre" -- the worst in a very long list of dismal management decisions.  The penurious Mets refused to renegotiate Seaver's contract and shipped him off to the Cincinnati Reds for a collection of mediocre players.  I attended his return to New York, where, looking positively surreal  in a Reds' uniform, he faced off against his old teammate and fan favorite, Jerry Koosman.  Along with the rest of the crowd, I was cheering for Seaver, who beat the Mets that day.   

Seaver continued his great career as a Red, including the strike-shortened season in 1981, when he led the league with 14 wins and came in second in the Cy Young voting.  And then came some measure of redemption.  Seaver was traded back to the Mets for the 1983 season.  It was indescribable to see him pitch a shutout on Opening Day.  But at 38 years old, it didn't seem he had much left.  He didn't have a great year -- and neither did the Mets -- but with Seaver wearing his familiar number 41, the Mets seemed like a team on the rise, with promising young pitchers, a Rookie of the Year in Darryl Strawberry, and the acquisition of Keith Hernandez.

But it was not to be. The Mets would have to rise without Seaver.  Incredibly, before the 1984 season began, the Mets left the 40-year old Seaver off the protected list, assuming no other team would want him.  The White Sox quickly scooped him up, leaving Met fans distraught once again.  Seaver won 15 games for the White Sox in 1984 and 16 in 1985, including his 300th.  In 1986, he finished an injury-plagued season with the Red Sox.  (A bad knee prevented him from playing against the Mets in the World Series.)

The Mets tried to atone once more, hoping to bring Seaver back to the Big Apple to finish his storied career where it began.  But after pitching a few exhibition games in June 1987, Seaver realized he had nothing left and announced his retirement. 

3 Cy Young Awards -- and deserving of at least another in 1971, 311 wins, 61 shutouts, 3,640 strikeouts and a 2.86 E.R.A.  In 1992, he was inducted into the Hall of Fame.  A career of remarkable moments and incredible milestones marred only by stupid, short-sighted management decisions -- including, more recently, the failure to honor Seaver with a statute at Citi Field. 

In devastating news, it was announced yesterday that Tom Seaver is suffering from dementia.  His family announced he will no longer make public appearances.  As the Mets gear up for the 50th anniversary of the 1969 team, his out-sized presence as a Met icon, a baseball legend, and a childhood hero to so many of us will be felt even more deeply and the memories he's given us will be held even more tightly.

Monday, February 25, 2019

Why Elizabeth Warren Would Be The Best President

It remains to be seen who will be the best candidate to take on the malevolent orange shit-gibbon in the general election.  All those who have declared or are likely to declare have baggage of one kind or another -- and even if they didn't, the Republican attack machine would invent some.  What is clear is that a whole lot of crazy shit has transpired since 2016, and the zeitgeist calls for a sharp break from politics as usual -- it isn't the time for an old white man who has previously run for the office; it isn't the time for a traditional campaign that calls for moderation, pragmatism and a move towards the political center. With both our democracy and the planet in dire straits -- a true national emergency, for fuck sake -- we need a candidate who can articulate how broken things are, how corrupt and destructive Donald Trump has been, and how to start putting the country back together -- in short, how to Make America Sane Again.

Some of the candidates probably meet this criteria while a few clearly don't.  (That said, it should go without saying that we must unite behind whoever the Democratic candidate ultimately is; that the candidates themselves must not tear each other or the Party down during the primaries and beyond -- I'm looking at you, Bernie.)

But beyond who might be the best candidate, a separate but related question is who would be the best president.  I think the answer overwhelmingly is Elizabeth Warren.

From a policy perspective, no one has better chops.  As a brilliant Harvard law professor, she argued for a new agency to protect consumers before the 2008 financial crisis hit.  She chaired the Congressional Oversight Panel tasked with investigating the bank bailout, where she took on the financial giants as well as the government.  She essentially created the Consumer Financial Protection Bureau which, before it was gutted by Trump, provided real relief for consumers against predatory practices by financial institutions and credit card companies.

Warren has already released a number of well-developed policy positions that address systemic economic inequality and would wrest a measure of economic control from corporations and the super wealthy while shifting some of their massive resources to workers, consumers and communities.

This includes Universal Child Care, which would guarantee child care for every child up to 5-years-old with families paying no more than 7% percent of their income in fees.  The cost would be paid for by another of Warren's proposed policies -- the Ultra-Millionaire Tax -- which would impose a 2% tax on wealth above $50 million and a 3% tax on wealth above $1 billion. This proposal would raise about $2.75 trillion over 10 years.

And there's Warren's Accountability Capitalism Act, which provides a powerful contrast to the Republican tax bill -- and, as she puts it, seeks to "help eliminate skewed market incentives and return to the era when American corporations and American workers did well together."  It "aims to reverse the harmful trends over the last thirty years that have led to record corporate profits and rising worker productivity but stagnant wages."  It would require that: (1) corporations with over $1 billion in revenue must obtain a federal charter requiring its directors to “consider the interests of all corporate stakeholders” beyond shareholders, including employees, customers and communities; and (2) workers of large corporations would elect 40% of the board of directors.

These aren't your typical wonky proposals from liberals addressing piecemeal issues, but are bold, game-changing policies.  Together with the Green New Deal and some variation of Medicare for All -- that Warren and most of the other Democratic candidates support -- they should not only have wide appeal for voters during the campaign, but would provide an essential new direction for the next administration.

A critical, overarching issue for both the campaign and the next administration is race -- particularly how institutional racism continues to impact every aspect of American society while the Republican Party has become the unapologetic party of white nationalism.  This is one reason (among many) why Democratic candidates of color -- Kamala Harris and Corey Booker -- are such compelling candidates.  They not only have the potential to energize African American voters who are key to a Democratic victory, but they bring necessary perspectives on race and racism drawn from their personal experiences and family histories.

Warren comes at racism from a more academic perspective.  But she understands, as she stated in her commencement address at Morgan State, a historically black college, “[w]e need to stop pretending the same doors open for everyone.” She points to "generations of discrimination” as the reason for economic inequality between white and black households. At Morgan State, she acknowledged that “rules matter, and our government — not just individuals within the government, but the government itself — has systematically discriminated against black people in this country,” with “two sets of rules: One for white families, and one for everyone else.”

A recent New York Times article described Warren's and Kamala Harris's "morally driven policy goals" as reflective of a "shift in the importance of race and identity issues in the Democratic Party."  Warren told the Times that "[w]e must confront the dark history of slavery and government-sanctioned discrimination in this country that has had many consequences, including undermining the ability of black families to build wealth in America for generations.” She explained that “[w]e need systemic, structural changes to address that."  And it isn't just talk.  In addition to her childcare proposal which, as the Times notes, "could particularly affect black and Latino communities, where informal child-care arrangements are more common," Warren also supports the government provision of special home-buying assistance to residents of communities that were historically subject to redlining, i.e., discriminatory mortgage practices.  

Of course, no Democratic proposal has any chance of passing the Senate -- even if Democrats win back the majority -- unless Republicans are stripped of their ability to obstruct everything.  That means we must take back the Senate and Democrats must eliminate the filibuster if they take over.  Unfortunately, most of the other Democratic candidates, particularly Warren's fellow Senators, are skittish about messing with Senate rules.  They fundamentally fail to grasp how the Republicans have destroyed traditional norms in their pursuit of unfettered Republican control over the government.  Warren understands this.  She has declared with regard to eliminating the filibuster, “Everything stays on the table. You keep it all on the table. Don’t take anything off the table,”

And, finally, a President Warren is not likely to pull an Obama and insist on "looking forward" while refusing to go after the malfeasance of her predecessor.  While several other candidates seem to be determined to ignore the orange elephant in the room and focus solely on Democratic issues, Warren shows that she can walk and chew gum at the same time, outlining policy proposals while calling out Trump's lies, racism and corruption.  With a lifetime of experience devoted to going after the rich and powerful, there is no one better positioned to take on Trump's abuse of power.  As she said recently on the campaign trail, “by the time we get to 2020, Donald Trump may not even be president.  In fact, he may not even be a free person.”  But if he is still free, you can be sure that Warren will seek accountability.

Unfortunately, the press has already shown that it has learned nothing from the 2016 debacle and will continue to treat a Democrat's relatively minor gaffes and missteps as equivalent to Trump's mind-blowing number of impeachment-worthy scandals.  They will continue to buy into Trump's framing and distort the issues surrounding Warren's claim of Native American ancestry, making some voters skittish about her electability.  Hopefully, as the campaigns get going, there will be more focus on substance.  If that happens, Warren could prove to be a formidable candidate.  She would certainly be a formidable president.

Thursday, February 21, 2019

Resist Trump -- Play Ball!


As the vulgar talking yam lurking in the White House seeks to delegitimize the very notions of truth, justice and the American Way, it is critical that we #resist by protesting, mobilizing and organizing.  We must insist on truth and push relentlessly for justice, but we also can't forget to celebrate the American Way -- by which I mean reveling in those profoundly American institutions that cannot be tainted by that malevolent shit-gibbon who is befouling just about everything else.  For me those sacred institutions include jazz (see Streamin' Jazz)movies (see Deeper Into Movies) and, of course, baseball. 

And so spring and Spring Training could not come too soon. 

Cue the Ken Burns music and read the next paragraph in a deep baritone voiceover.

Spring training, like spring itself, is a time of renewal and rebirth; a time when even the lowliest team has hope for the season ahead.  Critical trades and free agent signings over the winter have bolstered the team's weaknesses.  Players coming off injury-plagued seasons are returning in the best shape of their careers.  Hitters have corrected the flaws in their swing and pitchers have discovered devastating new pitches. 

It may be hackneyed and trite, but I buy it every year. 

As a Met fan, for most of the last decade or three, after enduring yet another dismal season filled with heartbreaking losses, underachieving performances, devastating injuries, and mind-boggling player moves or non-moves, I would nevertheless approach Spring Training with a na├»ve optimism that would endure at least until Opening Day. 

I would then delude myself through much of a hopeless baseball season that my team could pull it together and make a run for the playoffs down the stretch.  I refuse to face reality until sometime in August -- or, last year, in June -- when forced to accept the inevitability of a losing season, I would be stuck watching a team play uninspiring baseball for the last month or so, with little to root for other than spoiling another team's playoff run and the individual achievements of favorite players.  With a team going nowhere, much of the luster and lyricism of the game was lost -- at least until the spring, when it all begins again.

And here we are.  Perhaps due to the ghost of Bernie Madoff, Mets ownership refuses to act like a major market team that spends money for players that could put them over the top.  Instead, they hope to placate the fans by doing just enough to make the team competitive so that if everyone stays healthy and they get a little lucky, they can squeak into the playoffs -- never mind that they never stay healthy and they haven't been lucky since 1986.  

But wait -- there is no room for skepticism.  It's Spring Training. And, besides, the Mets actually did bolster the team with the acquisition of solid, if a wee bit past-their-prime players, including Robinson Cano and Jed Lowrie.  They added a big bat behind the plate in Wilson Ramos, strengthened their bullpen and added some important depth.  Their great young pitchers are all feeling good and ready to blow away hitters.  They have budding stars in Michael Conforto and Amed Rosario.  Brandon Nimmo and Jeff McNeil are the kind of gritty players that great teams need.  And there are high hopes for rookie Pete Alonso.

If everyone stays healthy and they get a little lucky, the Mets could have a magical year.

As for the fate of the country?  If we protest, organize and mobilize, and if we continue to protect our precious institutions, as the late, great Joaquin Andujar described both America and baseball "in one word:  you never know."

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Tuesday, January 29, 2019

Kamala's People

I met Kamala Harris about 15 years ago and she was very impressive. I was on the board of an anti-death penalty organization that gave her an award when she was the San Francisco D.A. for courageously refusing to seek the death penalty in a cop-killing case despite intense political pressure (Sen. Feinstein pushed for the death penalty at the officer's funeral!)  She was not only extremely personally engaging but she also gave a powerful speech about how the resources spent on death penalty cases could be better spent to ensure public safety. 

But as California's Attorney General she was a disappointment.  As did her predecessors (including Jerry Brown), Harris essentially deferred to the deputy AGs in the death penalty unit, who vigorously defended every death penalty case, no matter how suspect.  Under Harris's watch, the AG's office used every procedural technicality to prevent the courts from considering the underlying merits of cases, defended truly egregious cases of prosecutorial misconduct, refused to acknowledge cases of actual innocence, and vigorously appealed a federal court decision that found the death penalty law unconstitutional.  Harris also refused to support California ballot propositions that sought to reform the  criminal justice and replace the death penalty with life without parole.

Harris claims to have been a progressive prosecutor, but that phrase is really something of an oxymoron.  In my three decades as a defender of death row inmates, I admit to a long-standing bias against prosecutors who, generally, seem to care more about securing convictions than doing justice.  Even the more thoughtful or "progressive" ones still by and large see the criminal justice system as fair and just -- despite the overwhelming disparity in resources between the government and the defendant, and despite the built in bias against the poor and people of color.  And they view the way to solve society's ills through the prism of the criminal justice system, as Harris's history of threatening parents with prosecution for their children's truancy when she was D.A. suggests.

By using the slogan "Kamala Harris for the People" for her presidential campaign, Harris is explicitly linking her history as a prosecutor to her strengths as a candidate.  But the phrase "for the People" is a fraught one, as least from a criminal defender perspective -- after all, my clients were people too.  A prosecutor really represents an agency within the government.  But invoking the phrase "for the People' implies something different; it misleadingly suggests that the community at large wholly supports the prosecution of a given defendant, providing an unfair rhetorical advantage from the get go.

So, I don't buy the progressive prosecutor thing.  But at the same time, I find Harris to be an extraordinarily compelling candidate.  She is brilliant, a dynamic presence and a compelling speaker.  She is fearless and has put her prosecutorial skills to great use on the Judiciary Committee, where she skewered Trump nominees, from Jeff Sessions to Brett Kavanaugh.  She is unabashedly and consistently taking progressive positions on health care, climate change, immigration, equality and even criminal justice reform.  And the zeitgeist calls for a woman -- and a woman of color -- to run for president against an incumbent and a political party that have fully succumbed to misogyny and white nationalism.  And, at least according to Nate Silver, she appeals to the widest coalition of Democratic voters at this point.

I'm not sure how to reconcile Harris's history and her candidacy -- but I'm not sure I have to.  After all, there is not a candidate seeking or thinking about seeking the presidency who isn't flawed.  Indeed, our search for ideological purity last time is no small reason why we are where we are.   So although I'm wary of the embrace of a prosecutor's perspective as Harris's slogan suggests, I will support whoever has the best chance to take back the White House.  It's early, but it very well might be Kamala Harris.

Friday, January 18, 2019

Impeach The [Expletive Deleted]

Many of us fantasize that Special Counsel Mueller will soon wrap up his investigation and produce a wide-ranging and scathing report that will result in Trump's ignominious demise.  I suppose that's possible.  But it is far more likely that Mueller will accede to Justice Department policy not to indict a sitting president and will ultimately submit a narrowly-focused, restrained report that will encompass only some of Trump's misdeeds.  We can expect the administration to aggressively attempt to quash wide swaths of the report with broad claims of executive privilege that will have to be adjudicated in court, perhaps before Trump-appointed judges.  And there is also the question of whether the soon-to-be-appointed Attorney General, to whom the report will be submitted, will release it to the public and to Congress, or, as his confirmation testimony suggests, will disclose only a distilled and abbreviated version.

This means that the Democrat-controlled House cannot simply wait for Mueller to save the day.  Nor should it leave the task of investigating Trump's myriad scandals to a scattershot investigation by its various committees and subcommittees.  As Yoni Appelbaum thoughtfully and, to my mind, quite persuasively argues in his must-read article in The Atlantic, Congress must impeach Trump now:  "It must immediately open a formal impeachment inquiry into President Trump, and bring the debate out of the court of public opinion and into Congress, where it belongs."  Indeed, "only by authorizing a dedicated impeachment inquiry can the House begin to assemble disparate allegations into a coherent picture, forcing lawmakers to consider both whether specific charges are true and whether the president’s abuses of his power justify his removal." Impeachment proceedings will reframe and refocus the narrative and make it harder for Trump to change the subject as he is so adept at doing. 

I previously agreed with the Democratic Establishment that it was premature and politically unwise to push for impeachment.  It seemed to make more sense to let Congress methodically exhaust all investigative avenues to prove Trump's malfeasance first.  But this recalcitrance was based on a misconception about impeachment.  What Appelbaum makes compellingly clear is that the impeachment process does not require proof  before going forward.  On the contrary, impeachment hearings are an appropriate vehicle for developing evidence to establish whether impeachable offenses have been committed.  As Appelbaum helpfully reminds us, Nixon's impeachment hearings began before discovery of the so-called smoking gun tape recording of Nixon authorizing the CIA to shut down the FBI investigation.  In other words, damning evidence against Nixon that led to his resignation was developed in the course of those hearings.

Here, it is without question that there is already probable cause to go forward with an impeachment inquiry on a myriad of issues that include profiting off of the presidency, colluding with foreign powers and obstructing justice.  And now we have a new report that Trump may have suborned perjury of his attorney regarding the extent of his efforts to cut a deal for a Trump Tower in Moscow. As Trump hastens to destroy the country, what are we waiting for?

Once an impeachment inquiry is launched, a committee will subpoena documents, call witnesses 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 compelled 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, Appelbaum convincingly contends that the process itself will impede Trump's ability to pursue his destructive agenda as well as cause him deep and lasting political damage.

The mid-term election has given Democrats an opportunity to safeguard the country.  They need to seize it.

Friday, January 11, 2019

On The Importance Of Remaining Outraged

Revised from January 2, 2018
But Trump is anything but a regular politician and this has been anything but a regular election. Trump will be only the fourth candidate in history and the second in more than a century to win the presidency after losing the popular vote. He is also probably the first candidate in history to win the presidency despite having been shown repeatedly by the national media to be a chronic liar, sexual predator, serial tax-avoider, and race-baiter who has attracted the likes of the Ku Klux Klan. Most important, Trump is the first candidate in memory who ran not for president but for autocrat—and won. -- Masha Gessen, New York Review of Books, Nov. 10, 2016
Two years ago, after the unthinkable happened and a malevolent orange shit gibbon became the President of these United States, Masha Gessen wrote an essential piece entitled "Autocracy: Rules for Survival."  She criticized Obama, Clinton and other leaders of the Democratic Party for their far too conciliatory post-election reactions that pretended Trump was a "normal" politician to be given the benefit of the doubt.  She sharply observed that their magnanimous responses may have been meant to ensure a peaceful transfer of power but effectively closed off any alternative to despair and acquiescence by implying that there was no daylight between acceptable, indeed necessary, peaceful protest and a violent insurgency. 

After two years of enduring the complete abdication of political norms, the relentless attacks on our democratic institutions, the corruption and self-enrichment, the racism and xenophobia, the pathological lying and incoherent rambling, the obstruction of justice and abuses of power, so-called reasonable, mainstream pundits and politicians continue to call for calm, measured responses.  They insist that we should keep our collective powder dry for when Trump creates a true national emergency, as if we haven't been living in one. 

How pitiful was the reaction of establishment folks who reached back for their fainting couches when Rashida Tlaib, a newly-elected congresswoman, had the audacity to say what we all should be thinking -- that we should "impeach the motherfucker."  How self-defeating that they also want to rein in another, the refreshingly brilliant Alexandria Ocasio-Cortez, whose bold progressive policy proposals and stunningly effective rhetoric should be celebrated -- and emulated.

To those who call for modulating our outrage and lecture us to remain civil at all costs, it is well worth revisiting the six rules Gessen provided after the election, which are more relevant than ever:

Rule #1.  Believe the autocrat.

Trump says a lot of ignorant and provocative things that one would not expect from any rational human being, much less the purported leader of the free world.  While, as Gessen pointed out, it is human nature to assume he is exaggerating and to reach for a rationalization, it should be clear by now that Trump means what he says.  When he threatens to shut down the government indefinitely, we should not assume he is bluffing.  When he uses white nationalist rhetoric harkening back to the Jim Crow Era and dog whistles harkening back to Reagan, we should not assume he is merely firing up his base.  And when he repeatedly disparages the Justice Department, nominates acting and non-acting AG's who have expressed skepticism of the Mueller investigation, and interjects comments to and about key witnesses, we should not assume he is merely venting and won't foment a constitutional crisis when the walls start closing in further.  

Rule #2.  Do not be taken in by small signs of normality.

The bar is so low for Trump that anytime he reads complete sentences from a teleprompter without going on an off-the-cuff rant and drooling all over himself, the media is quick to remark that, at long last, Trump has acted presidential.  Mainstream pundits and politicians yearn, as we all do, for a calm, rational leader and many continue to engage in magical thinking, believing that any time now Trump will moderate his behavior and transform from mentally and morally unfit to fit.  But we can't be fooled by the occasional, although increasingly rare, appearance of reasonableness.  As Gessen wrote: "Panic can be neutralized by falsely reassuring words about how the world as we know it has not ended. It is a fact that the world did not end on November 8 nor at any previous time in history. Yet history has seen many catastrophes, and most of them unfolded over time. That time included periods of relative calm."

Rule #3.   Institutions will not save you

The White House press corps and other media entertain the musings of Trump aides and former aides (without noting their non-disparagement agreements) who enable the President by translating spontaneous tweets and crazy gibberish into something less insane and inane, and by spewing lies (i.e., alternate facts, unfortunate misstatements) that are then dutifully reported. Trump himself refers to the media as "the enemy of the people" and has threatened to shut down those outlets that he deems to be unfair -- or disloyal -- to him.  (See above:  believe the autocrat.)  This has all had a corrosive effect on the public's view of what constitutes not only real news, but real facts.  As for other institutions, Congress, until recently completely controlled by Republicans, undermined investigations that could have led to revelations of the Trump campaign's connections to Russia while pursuing trumped up scandals to undermine those revelations.  Republicans blithely ignored Trump's corruption and unfitness for office in favor of tax cuts, deregulation and appointing right wing judges.  And speaking of those judges, the courts, are being stocked with lifetime appointees at a record rate, filling vacancies left open by unprecedented Republican obstruction during the Obama Administration.  And then there's the Supreme Court, which now boasts two Trump nominees.  This surely will come in handy for Trump and his cabal when they mount court challenges to the nature and scope of the myriad investigations that will finally originate in the House now that Democrats are in control.   And don't assume that Mueller will save us.  (See above: believe the autocrat.) 

Rule #4.  Be outraged.

Every day there is something -- often more than one thing -- to be outraged about.  It is hard to resist scandal fatigue.  It is hard not to become inured to the arrogant abuse of power, the daily madness, the destruction of formerly accepted norms, the lies, the corruption, the cruelty, the ignorance and the instability.  The drip, drip, drip of the Russia scandal.  The nomination of unqualified judges who are avatars for the culture war.  The senselessly harsh and aggressive immigration tactics that are still tearing families apart.  The attempts to sabotage the ability to obtain affordable health insurance.  The ethics violations from virtually every cabinet member when they are not otherwise destroying the agencies they were appointed to run.  The efforts to mine, drill, frack and otherwise exploit public lands while ignoring climate science and destroying the environment.  The self-enrichment and business deals by Trump's family in the face of massive conflicts of interest.  And on and on and on.  It is impossible to keep up. But, as Gessen reminds us, "in the face of the impulse to normalize, it is essential to maintain one’s capacity for shock"

Rule #5.  Don’t make compromises.

We have already seen virtually the entire Republican Party sell their already very dark souls.  It is essential that we ensure that the Democrats -- particularly now that they have won the House -- resist and refuse to cooperate with an illegitimate president -- one who has still not disclosed his tax returns (but, hopefully, will be compelled to soon)  or revealed his myriad business interests and conflicts of interest; who, the mounting evidence suggests, cooperated with a foreign power to get elected; who is catering to a white nationalist agenda; and who has complete disdain for constitutional principles, democratic institutions and conventional norms.  "Those who argue for cooperation will make the case, much as President Obama did in his speech, that cooperation is essential for the future. They will be willfully ignoring the corrupting touch of autocracy, from which the future must be protected."

Rule #6.  Remember the future.

I can't say it any better than Gessen said two years ago:  "Failure to imagine the future may have lost the Democrats [the presidential] election. They offered no vision of the future to counterbalance Trump’s all-too-familiar white-populist vision of an imaginary past. They had also long ignored the strange and outdated institutions of American democracy that call out for reform—like the electoral college, which has now cost the Democratic Party two elections in which Republicans won with the minority of the popular vote. That should not be normal. But resistance—stubborn, uncompromising, outraged—should be."

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Monday, December 3, 2018

The Slippery Slope From Bush I to Individual I

Hagiography of dead U.S. presidents is a long-held tradition (see, e.g., St. Ronnie).  But at least we used to have Hunter S. Thompson around as a necessary corrective.  His off-the-hook obituary of Richard Nixon is brutal.  Here's just a taste:  "If the right people had been in charge of Nixon's funeral, his casket would have been launched into one of those open-sewage canals that empty into the ocean just south of Los Angeles. He was a swine of a man and a jabbering dupe of a president ... Richard Nixon was an evil man -- evil in a way that only those who believe in the physical reality of the Devil can understand it. He was utterly without ethics or morals or any bedrock sense of decency. Nobody trusted him ... and honest historians will remember him mainly as a rat who kept scrambling to get back on the ship."

Crucially, Thompson acknowledged that his Nixon obit may have been over the top but insisted that journalists must avoid the urge to paint the recently departed leaders with sentimental, revisionist strokes:  "Some people will say that words like scum and rotten are wrong for Objective Journalism -- which is true, but they miss the point. It was the built-in blind spots of the Objective rules and dogma that allowed Nixon to slither into the White House in the first place."

Which brings us to George Herbert Walker Bush.  The white-washing of his tenure and the praise for his decency is getting out of hand.  Sure, he appeared to put the good of the country -- at least as he saw it -- above personal financial gain.  As far as we know he didn't pay off porn stars.  And he was capable of compromise and ideological flexibility on occasion.  But that's a pretty low bar. 

So before we get too maudlin as we look back on those less vulgar days of bipartisanship, good fellowship and the rule of law, let's talk about Iran Contra. The Reagan Administration sold weapons to Iran, ostensibly to secure the release of hostages, and then used the money from the arm sales to fund the Nicaraguan Contras.  However, there was an embargo on arms sales to Iran and legal prohibition against funding the Contras. The ensuing scandal revealed evidence of money-laundering, arms smuggling and drug trafficking.  Bush, who was then Vice President Bush, famously claimed he was "out of the loop."  But he stonewalled the independent counsel's investigation -- refusing, for example, to turn over his diary -- and when he became president, he pardoned six participants, including former Defense Secretary Caspar Weinberger.  Cap was about to go to trial, and the pardon thwarted the ability to determine Bush's role among others in the scandal.

Lawrence Walsh, the independent counsel, issued a scathing statement condemning Bush's actions:   "President Bush's pardon of Caspar Weinberger and other Iran-contra defendants undermines the principle that no man is above the law. ... The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger....This office was informed only within the past two weeks, on December 11, 1992, that President Bush had failed to produce to investigators his own highly relevant contemporaneous notes, despite repeated requests for such documents....In light of President Bush's own misconduct, we are gravely concerned about his decision to pardon others who lied to Congress and obstructed official investigations."

Then there's Bush's classic use of dog-whistle racism in his presidential campaign in 1988 -- the famous "Willie Horton ad" used to scare white people into believing that if Bush's purportedly soft-on-crime opponent, Mike Dukakis, won the presidency, black rapists would be let loose on the country.  And he repeatedly sought to question Dukakis' loyalty to the United States, using McCarthy-ite innuendo, stating, for example, "I am not a card-carrying member of the ACLU. I am for the people."

Finally, there's Clarence Thomas.  In one of the most cynical moves in modern politics, Bush nominated the most anti-civil rights African American he could find to replace civil rights icon Thurgood Marshall on the Supreme Court.  Thanks to a condescending bunch of misogynists on the Judiciary Committee, Thomas was confirmed despite light-weight judicial credentials and credible allegations of sexual harassment.  And in the close-to-three decades he has been on the Court, Clarence Thomas has arguably been the Court's most conservative member.

In sum, Bush I undermined an independent investigation into government malfeasance by refusing to cooperate while abusing the power of the pardon. He appealed to the Republican base by using racist tropes and questioning the patriotism of his opponents.  And he put on the Supreme Court a far-right extremist with a history of inappropriate behavior towards women.  Any of this sound familiar?

RIP

Saturday, September 29, 2018

The Quintessential Met

Baseball is filled with heartbreaking stories about potential superstars who never reach the promise that seems within their grasp.  The Mets have had their share.  Dwight Gooden was a sensation when he burst onto the scene at age 19 as a once-in-a-generation talent, but  injuries and substance abuse tragically derailed his career.  His teammate, Darryl Strawberry, also never lived up to his limitless potential.  Then there was the trio of can't miss pitchers dubbed Generation K in the mid-1990s --Jason Isringhausen, Bill Pulsipher and Paul Wilson -- who all suffered major arm injuries before they even got started.  More recently, Matt Harvey, another dynamic pitcher, dubbed the Dark Knight, has had his path to almost-certain greatness stalled by injuries before being unceremoniously shipped out of town.

David Wright is not exactly in this category.  He is one of the greatest Met players of all time -- their greatest position player.  He is the career leader in pretty much every offensive category (except home runs in which he is 10 behind Darryl Strawberry).  But a series of injuries over the last several years took their toll on what could have been a Hall of Fame career.  

An article by sportswriter Matt Snyder plausibly claims that at age 30, Wright looked like he was on his way to the Hall of Fame.  At age 27, after six full seasons (2005-2010), he was a five-time All Star, with two Gold Gloves.  He, rather than Jimmy Rollins, arguably should have won the National League MVP in 2008 (he came in fourth in the voting).  Wright had two other top-ten MVP finishes in that span.  His career at that point was comparable to George Brett, Chipper Jones and Ron Santo -- three Hall of Fame third basemen -- when they were that age.  The following year, 2011, Wright suffered a stress fracture to his back, and missed two months of the season.  He rebounded in 2012, with another MVP-caliber season (finishing sixth in the voting) but hasn't had a full healthy season since.  Wright couldn't play at all last year and the two years before then he appeared in a total of 75 games.

As Snyder points out, through 2013, his age 30 season, Wright had pretty much maintained the great numbers he had been putting up throughout his career, with totals that included a .301 batting average, over 1500 hits, almost 250 doubles, 222 homers, 876 RBIs and 853 runs scored.  According to Snyder, with a relatively healthy next six-to-eight years, Wright likely would have amassed somewhere between 2500-3000 hits, 550 doubles, 350-400 home runs and 1500 RBIs and runs -- in other words, Hall of Fame numbers. Sadly, since then, he has either played hurt or was too hurt to play.

David Wright could have gone elsewhere after 2012, but remained loyal to the Mets, and signed a 7-year contract extension.  As a result, he is one of the few Met stars to have played his entire career with the team -- actually, with all due respect to Ed Kranepool, he is the only Met star to have played his entire career with the team.  In 2013, he was named team captain, and has been a steadfast presence with a remarkably positive outlook despite relentless setbacks to his recovery and generally disappointing play by his teammates.

With remarkable self-sacrifice and determination, Wright tried relentlessly to overcome the back, neck and shoulder injuries that have plagued him, and as another dismal season is nearing its end, he was hoping to take the field with the team either for a well-deserved swan song or perhaps as a stepping-stone to a more expansive comeback next year.  He played in some rehab games before the end of the minor league season and a few simulated games but it became clear that his body would not allow him to go forward at the major league level.

Met management has mismanaged so much over the decades but they deserve enormous credit for how they ultimately handled the end of David's career -- which ended today.  He was activated for this weekend.  He pinch hit yesterday and started the game today.  After two at bats (a walk and a foul out), he trotted out to third one last time and was then taken out of the game, leaving the field to an emotional ovation by his adoringfans at a sold out Citi Field.

Wright's career has spanned a period of hope and failure all too familiar to Met fans.  The devastating loss to the Cardinals in Game #7 of the 2006 playoffs, the two historic collapses to miss the playoffs the next two years (despite his stellar play), followed by six straight losing seasons and then a World Series appearance in 2015, which the team squandered, losing in 5 games.  Wright couldn't play at all these last two years and neither, it seemed, could the Mets.

So much of David Wrights' baseball career -- the injuries, the team's awful play and ownership's problematic decisions -- have been out of his control.  But he ended his career on his own terms.  He deserved it.

Friday, September 28, 2018

Democrats Need To Seize The Kavanaugh Narrative

Originally posted at Daily Kos

The questioning of Brett Kavanaugh before the Judiciary Committee was painful to watch — and not just because he came across as an evasive, entitled, intemperate, partisan bully.  The structure, tightly controlled by Sen. Grassley and giving each Party alternating five minutes, provided Republicans the ability to simply bloviate while Democrats were repeatedly interrupted by Kavanaugh’s self-aggrandizing filibustering.  This was hardly a process designed to get at the truth.  And the Democrats didn’t help themselves by lacking a well-coordinated attack.  By design, the day’s second half successfully drowned out Dr. Ford’s powerful, wholly credible first half.

But now that it appears that there will be a week before a floor vote while the FBI conducts an investigation, the Democrats have an opportunity to reset the conversation in order to bolster Dr. Ford as well as Kavanaugh’s other accusers, and further undermine Kavanaugh’s credibility.

As a minority party they lack subpoena power and are not empowered to hold an official hearing.  But they can do plenty that is unofficial.  They can hold an extended press conference over the course of several days, bringing forward witnesses, including the other victims of Kavanaugh’s sexual assaults, former classmates who can describe his drinking and belligerence, others who can expose his lies about his high school yearbook, experts on trauma to corroborate Dr. Ford’s testimony and others.  They can also present witnesses to flesh out his dissembling to the Committee about his activities while working in the Bush Administration.

It would be a missed opportunity for the Democrats to sit back and do nothing this week in the hope that the FBI conducts the kind of thorough investigation that will provide dispositive evidence sufficient to persuade Senators Flake, Collins and Murkowski to vote Kavanaugh down.  They need to  be aggressive, creative and change the narrative.

Thursday, September 27, 2018

Republicans Weren't Borked; Democrats Were Garlanded And Are About To Be Kavanaugh'd

Brett Kavanaugh railed hysterically against the Democrats who "borked" him during the first round of confirmation hearings and tearfully protested that, worse than that, he was now the victim of "revenge on behalf of the Clintons."   Right, he is the victim here.  Steeped in Republican conspiracy theories, this rage-fueled rant did not exactly show the even-handed temperament of a fair-minded, non-partisan judge.

 "Bork," of course, is grossly misleading shorthand for the politicization of the judicial nomination process.  Republicans are fond of citing Robert Bork's confirmation hearing as the casus belli for rancorous and partisan battles over Supreme Court nominees.  But let's set the record straight.  Ronald Reagan nominated Bork, a radical jurist whose views on the federal government's role in protecting civil rights, voting rights and reproductive rights were far outside the mainstream.  He opposed 1960's landmark civil rights legislation on the ground that government coercion of “righteous” behavior is “a principle of unsurpassed ugliness.”  Not only opposed to Roe v. Wade, he disagreed with the Supreme Court’s 1965 decision in Griswold v. Connecticut which struck down as a violation of the right to privacy a law that prohibited married couples from using contraceptives.  And he did not believe that the 14th Amendment's Equal Protection Clause should apply to women.

Importantly, Democrats did not filibuster Bork's nomination; he was afforded a full, if incredibly contentious, confirmation hearing, after which six Republicans voted with the Democrats to reject him.  After Bork's Supreme Court nomination was scuttled, the vacancy went to Anthony Kennedy.  Imagine if Bork hadn't been borked.  He would have cemented an an extremely frightening and very solid majority that would have very quickly eviscerated rights for women, minorities, labor and criminal defendants, erected insurmountable barriers for challenging the actions of corporations, and gutted federal regulations protecting the environment.  Kinda what we will be facing if Kavanaugh is confirmed.

Reagan's post-Bork nominees -- Kennedy and Scalia -- were confirmed unanimously.  And even after the Democrats regained control of the Senate, the first President Bush's nomination of Clarence Thomas (to replace Thurgood Marshall, no less) was confirmed despite Thomas's extreme conservatism, well-founded and disturbing allegations of sexual harassment and a thin judicial resume.  Thomas won by a painfully slim 52–48 vote, with the help of 11 Democrats.

And Samuel Alito, the choice of the second President Bush to replace Sandra Day O'Connor, and a justice probably farther to the right than Scalia and Thomas, was confirmed despite enough Democratic Senators voting against him to have successfully filibustered and prevented an "up or down" vote.

When Justice Scalia left the building, as it were, President Obama called the Republicans' bluff and nominated not a left-leaning progressive to the Supreme Court but, rather, Merrick Garland -- a centrist with a reputation for fairness, civility and following the rule of law.  Judge Garland was someone GOP leaders agreed would be acceptable until Obama nominated him.  Then this unassailable jurist was unable to muster even the traditional courtesy meetings with Republican Senators much less confirmation hearings or a vote.

Ignoring the fact that Obama had almost a year left in his second term when Garland was nominated, Republicans contended that the next president should decide who should fill the Supreme Court, an argument that had no basis in history or logic or convention, but they stuck to it.  Well, they stuck to it until it appeared that Hillary Clinton was going to win the presidency, when Republican leaders such as John McCain and Ted Cruz began arguing that the Court didn't really need a ninth justice after all.  Unwittingly or not, they revealed the Republican plan to refuse to allow Clinton -- or any Democrat for that matter -- to appoint the next justice. 
 
That question became moot when the unthinkable happened and the malevolent orange shit gibbon became president.  He nominated Judge Neil Gorsuch to fill the seat stolen from the Democrats.  The New York Times, on its handy liberal-to-conservative chart, put Gorsuch to the right of Alito and Scalia, but to the left of Thomas.  Smarting from the Garland debacle, the Democrats filibustered the confirmation vote, but the Republicans voted to get rid of the filibuster for Supreme Court, and Gorsuch was confirmed by a vote of 54-45, with three Democrats joining all the Republicans

Republicans (and some apologist Democrats) like to say that the Republican removal of the filibuster for the Supreme Court was fair play after Democrats voted to eliminate it for lower court nominees.  But the Democrats reluctantly voted to get rid of the filibuster only after the Republican's unprecedented obstruction culminated in stopping Obama's three nominations to the D.C. Circuit based on the specious argument that Obama was engaged in "court packing" when he was merely seeking to fill existing vacancies.  If the Democrats hadn't taken action, not only would Republicans have voted to eliminate the filibuster anyway when they returned to power, but they would have many more judicial vacancies to fill.

So, here we are. Justice Kennedy retired and Trump nominated Brett Kavanaugh.  The initial hearing was marked by the Republican refusal to allow Democrats -- or the American people -- to know the content of hundreds of thousands of documents from Kavanaugh's time as White House staff secretary in the Bush Administration.  These documents could have shed light on any number of critical issues, including the extent of his involvement in crafting the Bush-Cheney policy on torture, his role in using stolen strategy memos from Democrats and his role in preparing certain right wing judicial nominees for their confirmation hearings.  Indeed, the few documents that were disclosed provide pretty convincing evidence that he lied to Congress about these issues.

Then, today, a truncated hearing on one of the several sexual assault charges against Kavanaugh -- with only the accuser and the alleged perpetrator permitted to testify. Again, the Republicans thwarted any wider inquiry that could have gotten us closer to the truth.  But we know the truth and it doesn't matter to Republicans.  Dr. Christine Blasey Ford was utterly convincing in her measured, credible testimony about what Kavanaugh and his accomplice, Mark Judge, did to her when they were in high school, as well as how it has traumatized her.  Then Kavanaugh came on with a Trump-inspired performance consisting of vitriol, conspiracy-mongering and lies.  He was evasive and remarkably hostile to questions from Democrats -- especially from the women Senators who had the audacity to question his qualifications for a position he considers his birthright

And in an utterly demoralizing redux of the Clarence Thomas-Anita Hill hearing, a woman's compelling story was shouted down by an aggrieved man and his enablers, while she was ignored.  Kavanaugh pleased Trump, thrilled the deplorable base of the GOP, and apparently gave Republican Senators enough cover to plow his nomination through.

Republicans believe that the third, purportedly co-equal branch of government belongs to them.  For Republicans, this is apparently akin to the legal principle of adverse possession -- where one acquires title to property simply by virtue of being in possession of it for a certain number of years.  The Supreme Court has firmly been in conservative hands ever since President Nixon replaced members of the Warren Court.  And they intend to keep it that way.

Until we stop them.

Friday, September 21, 2018

The Kavanaugh Fight Is the Republican Party's Death Rattle

The confirmation of Clarence Thomas provides the closest parallel.  The demeaning treatment of Anita Hill by a condescending bunch of misogynists on the Judiciary Committee whose failure to fairly and meaningfully consider that Thomas engaged in sexual harassment and lied about it was a galvanizing moment in our history.  It brought issues about how women were treated in the work place into the public discourse.  It gave other women the space to talk about their own experiences.  And it spurred women to run for office and in many cases to win seats in both the Senate and the House.

But Clarence Thomas was confirmed (52-48).  And while those of us who believed Anita Hill then or do so now will always look at Thomas as someone who does not deserve to sit on the high court, there he sits.  He doesn't say much when he's on the bench but for over 25 years he has provided an ironclad conservative vote.

The integrity of the Supreme Court was supposed to take a hit after the Thomas confirmation, or after the travesty of Bush v. Gore, or Citizens United, or after Republicans stole a Supreme Court seat from Democrats by refusing to hold a hearing for Merrick Garland.  And political pundits are now speculating that confirming Brett Kavanaugh without the disclosure of his substantial paper trial or meaningfully resolution of questions about his actions while in the Bush Administration or, more recently, sexual assault allegations, will be a blow to the Court's credibility. 

But the Court has proven to be impervious to attacks on its reputation.  As designed, the Supreme Court, even at it has become more partisan, remains insulated from partisan attacks.  The justices have lifetime appointments, and their legacies are generally not sorted out until long after they have left the bench.  In real time, criticism no matter how harsh or justified can't really touch them.  So if and when Brett Kavanaugh -- or a right wing doppleganger -- is confirmed it won't matter how he (or she) got there. Like Clarence Thomas, he (or she) will be there for life.  And with Thomas, Gorsuch (the beneficiary of the Garland theft) and Bush II picks Alito and Roberts, the new justice will anchor a right wing majority that will transform the country's legal landscape.

And that's the end game for conservatives.  They don't care that the president is an amoral, ignorant monster as long as he nominates judges and justices who will please Evangelical Christians, the Koch Brothers and Wall Street. They probably don't really care whether they keep the House or even the Senate in the midterms if it means cementing a right wing majority on the Court.

They would see that as a pyrrhic victory for Democrats.  They understand that the country's evolving demographics are not on their side and that their base of non-college educated white men is dwindling.  But they don't need a majority if they control the courts.  They can come back and win elections with court-approved unregulated campaign funds, gerrymandering and voter suppression.  And they know that even if the Democrats control Congress, the courts as in the days of yore, can strike down progressive legislation. 

But what the Republicans are not counting on is the magnitude of the blowback.  As happened after the Thomas hearings, the despicable treatment of Kavanaugh's accuser by hamfisted Senate Republicans will further energize and empower current generations of women and non-deplorable men.

One would think that Trump's misogyny and history of sexual misconduct, GOP support for other sexual predators, and their War on Women, from attempting to defund Planned Parenthood to voting against renewing the Violence Against Women Act, would be enough.  But their uncompromising support of Kavanaugh and trashing of Christine Blasey Ford, his accuser, should be the last straw.  If Kavanugh is confirmed despite credible and corroborated evidence that he sexually assaulted a 15-year old girl -- and then lied about it -- the level of outrage should propel Democrats to victory this November.

But that's not all.  Kavanaugh's confirmation, as well as the chipping away of Roe v. Wade and other disastrous court decisions that Kavanaugh's confirmation ensures, will continue to resonate in 2020 when Elizabeth Warren, Kamala Harris, Kirsten Gillibrand and others will have potent arguments for why women need to lead this country in the White House as well as in state and federal legislatures. 

In 2020, Clarence Thomas will be 72.  He will not be on the Court forever.  When he goes, the Democrats will be in power and replace him, resulting in a liberal majority on the Court for the first time since the Warren Court was dismantled during the Nixon Administration.  The old white men of the Republican Party will eventually be gone too -- replaced by a progressive majority that truly represents the diversity of the country.

That's our end game.