The "free" press

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It was reported yesterday that Donald Trump summoned a variety of executives and on-air talent from five news-reporting organizations to Trump Tower for a meeting that one participant later described (in more colorful terms than I will repeat here) as a dressing-down, primarily focused on their (mis)treatment of Donald Trump the candidate during the campaign.

Many of the participants in this meeting were expecting to have an off-the-record discussion about Trump's plans for media availability once he becomes president in January.  Traditionally, the White House has made arrangements that enable the various media outlets to pool resources for coverage so that they can bear witness to important events without each maintaining a 24/7 presence.  These arrangements acknowledge the importance of a free press in a democratic society, particularly as it relates to the accountability function.

Instead, what they got was--reportedly--a 40-minute harangue about supposed anti-Trump bias in their reporting.

I am gravely concerned about the media.  I am, of course, old enough to remember the George W. Bush presidency.  After the events of 9/11/2001, Bush was given extremely wide latitude by a credulous press that was fearful of losing their access to White House personnel--something that in theory they need to be able to do their jobs.  In addition, the Bush administration used "embedding" of reporters with military units in order to induce favorable media coverage, with disastrous results (at least as far as the role of the media in our democratic society is concerned).

That was bad enough.  But what's happening now is worse.

Two events from last Friday illustrate the problem.

Late on Friday, word came down that Trump had agreed to settle the claims against him in the "Trump University" fraud case, for $25 million.  While that settlement carries not express admission of wrongdoing, there are some important factors to consider:  The plaintiffs in that case were only seeking $40 million.  The $25 million includes payment of a $1 million fine to the State of New York for violating its laws against sham educational opportunities.  Trump thus paid 60% of the amount the plaintiffs were seeking in a case that had been scheduled for trial only 10 days after the settlement occurred—which is very nearly as close to an admission of guilt as you can get without actually saying the words.

Even later on Friday, Mike Pence attended a performance of Hamilton, the smash-hit Broadway musical that centers on the life of Alexander Hamilton.  The attendance was notable for two reasons; first, Pence was booed by the audience (not by the actors, as some alt-right fake news outlets reported).  Second, after the show, the star read a short, respectful statement to Pence advising him that they were fearful of the new administration's history and plans and urging him to consider the views of others, particularly including the LGBTQ community, whom Pence has famously and unrepentantly attacked over the course of his career.

Later, Trump tweeted about how disrespectful the Hamilton cast had been toward Pence.  Never mind how fallacious those tweets happened to be.  The media ate it up--allowing it to dominate the headlines for most of three days.

Look, I don't expect the media to skip the Hamilton story.  It's an interesting story.

But the fraud settlement got virtually no media coverage,* and I'm struggling to understand why.

* My morning news show of choice, CBS This Morning, devoted about 15 minutes of its first hour on Monday to the Hamilton story, but did not mention the fraud settlement at all.

If Hillary Clinton had just been elected, and had just paid $25 million to settle a fraud claim against her, what are the odds the media would (largely) ignore the story?  There would be inch-high headlines in the New York Times, top of the front page.  After all, when James Comey wrote a letter to Congress 11 days prior to the election saying that the FBI had discovered some new emails that might have a bearing on its investigation of Clinton's email server, the Times devoted 100% of its above-the-fold front-page space to the "story."

Meanwhile, Trump essentially admits to conduct that if he were less rich and less famous probably would have seen him indicted for fraud, and our "free" press can do no better than a yawn.

Trump is already the least-transparent candidate in modern political history, having refused to release his tax returns.  When presidents are elected, they traditionally put their assets into a "blind trust"--every investment they own is sold, and the funds are handed over to a trustee who manages those investments without the president's knowledge or input.  Trump has refused to do that.  Instead, he is turning his financial empire over to his children, whom--by the way--he is planning to include as close advisers.  Already reports are rolling in about foreign dignitaries who are seeking to curry favor with Trump by doing him business favors like booking rooms in his hotels and greenlighting projects in which he's involved.

These acts are truly unprecedented.  Even if past presidents weren't predisposed to recognize and avoid the potential for conflict, they were at least motivated to avoid the shame and political scandal that would result if they did not appear to be working solely for the country and not for their own personal financial advantage.  Not Trump.  He is giving every indication that he plans to use the next four years to line his pockets at every opportunity, the country be damned.  Nowhere is that intention more evident than in his plan to live most of the time at his residence in Trump Tower--presumably so he can continue to manage his business affairs.

We deserve better than a part-time President.

But we will never get better than that unless the media do their job, fearlessly and with only one constituency in mind:  the truth.

Unfortunately, after their dressing-down, it appears that they are instead going to serve as yes-men for this fraud of a man who has somehow slipped into a chair he should never have gotten near.

What are they afraid of?  They have all the power, if only they would simply use it.

Eating your vegetables

It's no secret that I weigh more than I should.  The reasons for that are simple:  I eat more than I should, I eat the wrong kinds of foods, I don't exercise enough.  I'm not a fan of vegetables; I tolerate them, mostly because I have to.  I'm on a diet now, and part of that diet involves eating vegetables I don't like--but I do it because I need to lose weight to improve the length and quality of my life.

Over the last 10 days, as I've watched the Trump transition move forward, it occurred to me that the eat-your-vegetables analogy can be used to describe the Trump/Republican approach to government.

I have heard several people tell me, in all seriousness, that they voted for Trump because, as a successful businessman*, he can do a better job of managing the federal government than a career politician like Hillary Clinton.  The theory, I suppose, is that running a vast business enterprise requires skills that, properly applied, will make the government run more like a business (and, by extension, like a successful business).  Meanwhile, the lack of business experience means that a politician will make all the same mistakes the supposedly inefficient government makes, and things will never get better.

* I think that at best the jury's still out on whether Trump qualifies as a successful businessman.  But we'll take that at face value for the moment.

This strikes me as the kind of argument that stupid people think sounds smart.  It's fraught with problems, and it takes for granted certain things that just aren't so.

First, the federal government is an enormously complex organization that has 320 million customers and 320 million owners.  With the possible exception of Facebook, no private business has that many different constituents to try to please.  (Facebook has, what, a billion accounts?  But it has an extremely narrow focus, compared to the federal government.)

Second, for what it must accomplish, the federal government is incredibly efficient.  I'll use health care as an example:  The federal government provides health care to the poor and the elderly through Medicare and Medicaid.  The cost ratio of those programs--the percentage of each program's budget that goes to "overhead expense" rather than health care services--is under 3%.  Private insurers, who by law are compelled to spend 80% of the premiums they collect on health care services, struggle to meet the implied cost ratio of 20%.  Meanwhile, Medicare and Medicaid must insure everyone who is eligible for them, while private insurers can choose the kinds of customers they want to serve, to some extent.

Third, private businesses exist primarily to serve their shareholders.  If a business line isn't serving the shareholders (i.e., it's losing money), the business will generally shut that business line down.  Private businesses have broad latitude to make those kinds of choices.  The government has to find a way to do the things that are needed, even if they are costly.

The problem with the Trump transition--and, I suspect, an enormous wake-up call that happened when Trump met with President Obama last week--is that Trump is used to running his organization as a top-down, hierarchical organization.  Trump has the authority to decide for his companies what they will do, to hire whomever he wants to do those things, to fire people when they don't meet his expectations, and to change directions when his businesses fail (and he has repeatedly done so, apparently with few consequences).

As President, Trump will not have that authority.  The President is powerful, but he is still subject to the law.  He cannot simply do whatever he likes; the law imposes on him certain duties that he cannot shirk; before he can spend money, Congress must agree that it should be spent; and the Constitution imposes still other limitations on his activities.  There is a process and procedure associated with doing things.

Which brings us back to the business of governing.  Only totalitarian dictators get to impose their will upon the governments they head.  Governance in a democratic republic like ours, with the separation of powers like ours, requires compromise and negotiation; it requires knowing the rules and following the procedures.  In short, being the President requires a special set of skills that is completely different from those of a standard--or even a celebrity--businessman.  It requires being able to eat your vegetables, even if you don't want to, because the instant gratification of a meat-and-dessert diet isn't worth the long-term problems.

There are many things about the government that could be improved.  Trump has focused lately on our free-trade agreements, Obamacare, and taxes.  Many of the people who voted for him did so because they liked his message on those topics--they see problems with these things, and they thing that simply removing the thing will solve their problem.

Lost your job because the company moved production to Mexico?  End NAFTA.

Can't afford health insurance anymore?  Repeal Obamacare.  (Or repeal parts of Obamacare.)

Don't have enough money?  Cut taxes.

The problem with these "simple" solutions is that the system exists as it does because the system was designed to solve a problem--perhaps a different problem than one you are experiencing, but a problem nonetheless.  We might take a broadsword to the establishment, but the yesterday's problems will still exist.  NAFTA came about because it was difficult for us to sell enough goods to our nearest neighbors because of trade barriers.  Obamacare came about because 45 million Americans didn't have health insurance and mostly resorted to emergency care.  Our tax code exists as it does because deciding who pays for what is a matter of negotiation and compromise.

It might feel good to end NAFTA, but what about the American companies that sell products to Canada and Mexico?

It might feel good to repeal Obamacare, but what about the 20 million Americans who will lose their access to health care?

It might feel good to cut taxes, but how do we fund the programs that you rely on?

Governing is hard work, and it requires smart work from people who know what they're doing--from people who are willing to eat their vegetables because that's required for the best outcome.

I have more to say on this topic, but it's been a long week.

A duty to oppose

If you know me—and, let's face it, if you read this blog, you probably know me personally—you know that I'm unhappy with the results of Tuesday's election, to put it in the weakest terms possible.  Over the last 36 hours, I've been fending off some of the darker aspects of my personality and experiencing some emotions that I don't often feel:  anger, fear, depression, anxiety.

About a year and a half ago, I challenged the Republicans to nominate Donald Trump.  I believed at the time that there was no way that the American people would see fit to put him into office.  It's sort of the equivalent of electing Elvis as president.  Sure, he's popular, but he's utterly without qualifications.  (Those who watched the 1990s Teri Hatcher-Dean Cain version of Superman will recognize the election of a "surprise, I'm alive" Elvis as a minor plot point.)

So, I guess, the lesson is "be careful what you wish for."

But make no mistake:  His election cheapens the Presidency.  And that he was apparently elected with the second-most votes cheapens his election.

Various responses to this development suggest themselves.  My first thought was to move.  That's not a hysterical reaction, steeped in hyperbole.  Rather, it's a pragmatic solution to a central question:  Do I really want to live in Donald Trump's America?  Why not move to Australia or New Zealand, or to Canada, or even Belize (where they speak English, not that it's a problem)?

See, for the first time in my lifetime, in Wednesday's early-morning hours, I felt ashamed to be an American.

I didn't feel this way when George W. Bush was elected, because even though I thought he was a buffoon, he did have significant experience at the business of governing.  In fact, I believed--and still believe--that Bush was and is a good man who tried his best, sometimes under very difficult circumstances, to do his job in a way that would benefit people.  While we have strong disagreements about the best way to do that, I believe that his goal was to leave things better than he found them.  He may have failed, but I'm talking about motivations.

Donald Trump, by contrast...I can't speak to what's going on inside his mind.  But his words, his plans, his rhetoric, his behavior—all of them point to a classless, uncouth person who lacks decorum, who acts exclusively in his own self-interest, and who is willing to access his constituents' darker inner hatred of others to achieve his goals.  He is a disgusting human being who has no place in the Oval Office.  Unfortunately, the framers of the Constitution failed to include "not being a disgusting human being" among the qualifications for the Presidency.

I thought we were better than that.  I thought we had finally turned the corner and moved past that.  Unfortunately, we have not.

I should make clear, of course, that I do not believe that everyone who voted for Trump hates racial and sexual and religious minorities.  But everyone who voted for him is willing to tolerate, activate, and use that sort of hatred, as long as it doesn't interfere with their goals.  In a way, that's far worse.

See, the problem with Jim Crow wasn't only that the laws and the policies themselves we so onerous and degrading--it was also all the ostensibly good people who stood by and let it happen, who couldn't be bothered to take a stand.

So let's not mince words:  Even if you don't personally hate black people and Latinos and homosexuals and Muslims and disabled people, and even if you personally think that women shouldn't be subjected to sexual assault and degradation, if you voted for Trump, you said, loud and clear, that you are completely OK with people who do think that way having access to the levers of power in this country.

And that, my friends, is a viewpoint that I find shameful, and I'm not afraid to say it.  If it offends you, tough. It's up to you to repent of that particular sin.

So, in the end, the most important question is, "What do we do now?"

The next four years are going to be tough.  Even if Trump ends up resigning or getting removed from office—I think the odds of that are far greater than any president in my lifetime (I was born more than a year after Nixon resigned)—the next guy in line is no better and is in many ways much worse.  So our goal is to spend the next four years limiting the damage that these people have caused us, as best we can.

We will not be able to do a lot to stop this runaway freight train, but maybe we can slow it down, and maybe we can make sure that if anyone has to feel the pain this causes, that pain is visited on the people who caused it.  I don't have specifics on that point, but I do have the general solution. 

We oppose everything.

We use every available lever, every parliamentary trick, every delay tactic, everything we have at our disposal, to oppose this hateful agenda.

We use the courts and the court of public opinion.  We protest. We sue. We kick and scream and yell.  We rise up.  We say no, even if it's something we might like.

We make them earn everything.

Above all, we stay and fight, because this is our America, too, and we have a duty to save her.

America is already great

One of the genuinely bizarre aspects of this election cycle is the slogan that's central to the campaign of Donald J. Trump, emblazoned in plain script on a baseball cap:

MAKE AMERICA

GREAT AGAIN

I have spent much of the last year pondering what that slogan is intended to convey.  It implies that America was once great, but that it no longer is, and that some change needs to be made to make it great again.  I will admit to being deeply ambivalent about this slogan.

It would be easy to write off Mr. Trump's supporters as mostly white, mostly male dim bulbs whose principal lament is that they are living during a time of the ascendancy of the minority.  These people view prestige and prosperity as a zero-sum game; they believe that the body of straight American white men, of which I am one, must lose something in order for a black person, or a woman, or an immigrant, or a homosexual to gain something.  It's a better time today to be a person of color, or a woman, or gay, or transgender, than at virtually any other time in our history, so it must be a worse time to be a straight white man. 

And maybe there's something to that.  It's hard to tell someone who has very little that the little they have came as a result of some privilege they didn't realize existed.  Perhaps on some level, they recognize that competing without the advantage of the cultural weights placed on minorities might result in them losing some fights they now win.

It's no wonder they're angry.  And it's no wonder they would get behind someone who tickles their emotions in all the right ways.

In the opening scene of the Aaron Sorkin-led HBO series The Newsroom, Jeff Daniels, playing newsman Will McAvoy, is giving a panel seminar at a university, and he is asked what it is that makes America the greatest nation on earth.  After seeking three times to demur, the host pushes him for a "human answer."  McAvoy shocks the audience, then, by saying that it's not, then proceeds, in a classic Sorkin monologue, to explain why we used to be great and why, having lost so much of that, we're not.  And there is some justification for the position.

The truth is that we have never quite lived up to our promise.  Slavery is a deep and permanent stain, not only on our history, but on our Constitution, which enabled it and allowed its exploitation.  We have never done right by our First Nations peoples.  We have exploited immigrants from Ireland, from China, from Mexico.  Despite the almost unimaginable wealth of resources we have, millions of Americans live in crippling poverty.  We have oppressed women, sexual minorities, racial minorities, religious minorities.  We have burned up far more than our share of the world's energy reserves, and contributed massively to at least three global environmental crises in my lifetime:  global warming and climate change, the thinning of the ozone layer, and the pollution of the world's oceans and resulting damage to food fish stocks.  We have interfered in democratic governments around the world, often contrary to our own principles.  We have started wars and led coups d'etat.  We remain the only nation to use nuclear weapons in combat.

The debit side of our ledger is full of misdeeds, so full, in fact, that it would not be difficult to imagine an objective observer concluding that, on the whole, the American Experiment has been a disaster for the world.

And yet...I take a different view.

In spite of all of these terrible things, we are still great.

In fact, you might even say that we are great now because of all of these things, and because of what we have done to correct them.

After all, it is my belief that whether you are great or not depends not so much on whether you commit wrongs, but on what you do to right them.

This is as true for nations as it is for individuals. No one is perfect.  We all do things that we shouldn't.  We all do damage to others.  It's inescapable.  So there must be some other way to judge whether a person or a nation is great.  I choose to believe that greatness resides in the impulse to right wrongs.  And no one is better at that, as a nation, than we are.

I can remember being about 8 or 9 years old, and reading about a famine in Africa, in Ethiopia specifically, and seeing pictures of young children with bellies distended from malnutrition, and of impossibly thin people, quite literally starving to death.  There were famous appeals--Band Aid and USA for Africa, among others--centered on raising money to send food aid to Ethiopia.

At that time I was also becoming politically aware, not just in terms of politics in this country, but of the geopolitical events that shaped the 1980s.  We learned about glasnost and perestroika, Russian words meaning "openness" and "restructuring" that defined the efforts of Mikhail Gorbachev to reform the Soviet Union, and that caused me to think about what, precisely, they were "restructuring."

The significance of these things in my own consciousness and self-image cannot be understated.  They were important to developing my concept of what it means to be an American, what our place is in the world, and why we do the things that we do.  Perhaps most importantly of all, I began to recognize what a stroke of luck it was for me to be born here.

I believe, despite all of our many faults, that this country is great, that it has been great since its founding, and that, all things considered, on balance, it is indeed not only the greatest nation on earth, but also the greatest nation that has ever existed.

Yet Trump and his followers disagree.

My first instinct, with confronted with personal conflict, is introspection.  Where is the error in my own thinking? I ask.  If Donald J. Trump, or any other political figure, or my next-door neighbor or closest friend implies rather strongly that America is not great, what are the factors that lead them to a vastly different conclusion than I have drawn?

I've watched them, the Trumpites, very carefully, to learn the answer.  And they have spoken their answer loudly and clearly.  They believe that America is not great, that it has lost its way, precisely because of all of the reasons why I believe this country is great.  They resent the broadening of civil rights.  They resent the equality of women, of racial minorities, of sexual minorities.  They hate marriage equality and they would dearly love to turn back the clock to the 1950s, or, sadly, the 1850s.

See, all those reasons that I cited above, about how we've fallen short of our promise from time to time--for the average Trump voter, those are good things.  When Trump says he wants to make America great again, he's talking about rolling back the progress we've made--depending on your perspective--over the last 50-150 years.

This is not the kind of "greatness" to which we should aspire.  We're better than that.

In short, to quote Mr. Trump's opponent, America is already great, and we are great because we are good.  We are great because we want to get better.  We want more people to live in freedom and to prosper.  We want to lend a hand to those in need.  We want to cure disease and end wars and protect the innocent and to stop the crimes of the guilty.  We know that our strength is only as good as what we do with it, and we know that we are stronger when we work together to do good things, rather than when we emphasize our divisions and work to exclude others from the American Dream.
We have come too far, fought too hard, shed too much blood and sweat, and suffered too much heartache to return to the "bad old days."  

On the brink

It has been a while since I've foisted one of these blog entries on the 2 or 3 people who read this blog--just over three months--and for that I am sorry. It's been an extremely busy summer, and something had to give.

I am spurred to write, however, by some genuinely disturbing developments in the presidential campaign.

There are not many "things" that I love in this world.  People, sure.  Ideas, sure.  But I am at the stage in my life when things matter to me only as much as they are useful to me.  I have lost virtually all of my sentimentality toward objects.

But there is one thing that I love, that I have genuine reverence for, that means more to me than just about anything in the world, save my family.  It might sound corny, but that thing is the Constitution.

In the last couple of weeks, the Donald Trump campaign has imploded.  His polling numbers are showing a precipitous decline, and he keeps making unforced political errors that have cost him support.  At this point, I am reasonably confident that all Hillary Clinton has to do to get elected is keep quiet and let Trump continue his nose dive. 

I have had little doubt about this development since I asked the Republicans to nominate Trump about 15 months ago.  People thought I was joking; I wasn't.  I knew that Trump would not be able to sustain a long campaign without becoming a caricature of himself.  I think Hillary could have beaten pretty much anyone in the GOP field--she would've had a tough time with John Kasich, I think--but Trump held the right combination of appeal to the average GOP voter and utter political incompetence.

He's going to lose.  You can read it on his face, as his comments become increasingly volatile and desperate.

But there have been three developments over the last couple of weeks that I regard as exceptionally dangerous--an existential threat to our Constitution that has not been seen since the election of 1860.

The first development was Trump's decision to invite to the second debate a woman who, as a 12-year-old girl, was raped by a man whom Hillary Clinton was appointed by the court to defend.  She was reluctant to take the appointment, but as a new female lawyer in a small town, she did not believe she could turn it down without incurring the wrath of a judge before whom she would likely have to appear many times.  She strongly believed her client was guilty.  She put him through a polygraph, which he passed--and which she noted later, with a chuckle, that the experience undermined her faith in lie detectors.  But, as all attorneys must do, she gave him the best defense she could, guilty or not.  She hired an expert witness to test some evidence--a pair of the victim's underwear, allegedly with a semen stain--that the Arkansas State Crime Lab had already tested and found consistent with the defendant's blood type.  Recall, by the way, that this was 1976, well before the availability of DNA testing.  All they could do at that time was test for blood type, a blunt instrument, but effective at ruling people out.

And it turned out that the crime lab had destroyed the evidence in the process of testing it.  For that reason, she was able to get that evidence excluded (properly).  And because the rest of the prosecutor's case was weak, she got them to agree to a one-year jail term and five years' probation on a plea bargain; he could've gotten 40 years on the original charges.

Now, what happened to that girl was a terrible thing.  I don't think anyone would argue otherwise.  But Hillary's involvement in the case had nothing to do with what happened to that girl.  Hillary's involvement was to provide the defendant with the defense the Constitution says he was entitled to.  That is how our system works, and to some extent or another, the existence of the right to counsel in criminal prosecutions is very likely the most fundamental right that an individual has in being able to stand up to the government.  It is un-American to criticize an attorney for defending a criminal defendant, especially on an appointment.  But Trump has now done so.

The second development was the response from the Trump campaign to an article in the New York Times detailing the allegations from several women who claim to have been groped or otherwise sexually targeted by Trump in the past.  Recall that in the second debate, under persistent and heavy questioning from Anderson Cooper, Trump denied that he ever groped a woman as he described in the Access Hollywood video that became public last Friday.

That kind of denial is like waving a red flag in front of a bull.  Several women have come forward to allege that he did just what he claimed never to have done, and the New York Times has reported their allegations after corroborating their stories.  Trump's response:  To have his attorney write a letter to the Times, calling the allegations libelous, and to demand a retraction with threats to litigate.

For its part, the Times has stood its ground, and good for it.  Even if he doesn't know it, his attorneys should:  Public figures are fair game when it comes to comment on matters of public concern.  The First Amendment guarantees the right to publish such allegations, even if they are false, as long as the publisher is not motivated by actual malice, a standard that in practice is impossible to meet.  Fun fact:  In the Supreme Court case that established that standard, the defendant was none other than the New York Times.  (See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).)

Trump's threat of a lawsuit--which is far from his first against the press--is inconsistent with the First Amendment.  The free press is an important part of our country's Constitutional foundation.

The third development has come more subtly.  Now that it's clear that Trump's campaign is failing--slain by the candidate himself and his inability to keep his mouth shut--he has begun to murmur about a "rigged election."  Now, to be clear, I think we fall well short of fully fair elections in this country.  There are serious questions, questions that deserve examination, about gerrymandering, voting apparatus, registration issues, and concerted efforts to keep certain (pro-Democratic) groups from voting.  But those problems are primarily structural in that they are geared toward gaming the outcome of an apparently fair election, not toward "rigging" the election in the sense of falsifying the outcome.

Our elections are not "rigged."  By and large, the results we will receive on the night of November 8 will reflect the votes as they were actually cast.  Any "rigging" that occurs is at least a step removed from that:  gerrymandering that allows one party to maximize the effectiveness of the votes it receives; election officials who decide to "purge" voting rolls based on spurious criteria; voting machines that don't work properly or that are arranged to make it difficult for votes to be cast; and onerous registration requirements that deny citizens the ability to exercise their voting rights.  We can and we must do something about those things, but no one is sitting in a lonely county clerk's office flipping vote totals.  The votes we see will be the ones that were cast.

But Trump says otherwise--and that's something no major-party candidate has said since the election of 1860, in which Republican Abraham Lincoln prevailed over a fractured Democratic Party, and which led directly to the Civil War. Not even Al Gore, who has as strong a claim as anyone to having been the victim of a rigged election, allowed himself to make that kind of statement.

Trump knows that many of his supporters are volatile.  Many of them are looking for an excuse to use the "Second Amendment remedies" he praised at one point in the campaign--a thinly veiled threat of violence if they are unhappy with the result.  That, too, is against the very concept of our Constitution.  Our system provides for free and frequent elections, with transitions based on voting, not violence.  If you cannot commit to the orderly, reasonable, nonviolent transition of power from one administration to the next, then you have no place holding office in this country.  Our Constitution demands at least that much.

When I became an attorney, I swore an oath to support the Constitution of the United States.  Though there were other elements of the oath of my office, that was the first part, clearly set forth at the beginning and clearly the most important part of the oath itself.  That oath is much the same as the oath sworn by every officeholder in this country.  It is implied and imposed on all of us.  After all, it is our Constitution that makes us who we are as a people--not our national origin, or our race, or our sex, or our color, or our religion, but our common belief that the Constitution is the supreme law of our land.  We owe it to ourselves and to those who come after us to guard against all who would do damage to it, Donald Trump and his supporters included.

What will it take?

Oh, a storm is threat'ning
My very life today
If I don't get some shelter
Oh yeah, I'm gonna fade away

Last week was an extremely disappointing week, and in some respects heartbreaking.

On Tuesday, two Baton Rouge police officers shot and killed Alton Sterling. Police were called to the store in front of which Sterling was selling CDs on the basis of an anonymous call indicating the Sterling had been brandishing a weapon.  Sterling, a homeless black man who sold CDs on the streets of Baton Rouge, was in the process of being arrested when one of the officers on the scene shouted that Sterling was going for his gun, at which point he was summarily executed, on video, by the police.

On Wednesday, during a traffic stop purportedly for a broken tail light, a police officer from St. Anthony, Minnesota (a suburb of St. Paul) shot Philando Castile, also a black man, four times, killing him.  Castile was, by all accounts, fully compliant with the officer's requests during the stop and notified the officer that he had a concealed carry license and a weapon in the car.  As Castile reached for his wallet, the officer shot him as Castile's girlfriend and her four-year-old daughter watched.

On Thursday, during an otherwise peaceful protest of the Sterling and Castile killings in downtown Dallas, a black man, an Army veteran, shot fourteen white police officers, killing five of them.  Later, after negotiations with a Dallas PD crisis negotiator failed to produce a surrender, the bomb squad sent a robot with a bomb into the area where the shooter was holed up and detonated that bomb remotely, killing him.

Protests continued through the weekend, and some of them were marred by minor violence.

On a personal level, a dear friend of mine, who was family of my family, and with whom I had shared family holidays, and who was a valued teammate on our championship trivia team, passed away suddenly and unexpectedly on Thursday.  On a personal level, his passing leaves a gaping hole in my life that has predominated over how I feel about the incidents noted above.  I do not cry often, but I cried when I heard that Norman had died.

It has been hard over the last few days to wade through the enormity of what happened last week. But wade I must, because the alternative is too terrible to contemplate.

When Michael Brown was killed, they said it was OK because he was a tall, lanky, man-sized thug, a criminal who had just stolen from a store, who needed to be stopped, and who punched, then charged at the police officer.

When Freddie Gray was killed, they said it was OK because he had a record and he was engaged in mayhem when they loaded him into the police transport.  Never mind that they failed to buckle him in, then drove erratically, causing him to break his neck.

When Tamir Rice was killed, they said it was OK because at 12 years old he, too, was man-sized, and because he was playing alone in a public park with a toy gun, and so what if the officer shot him dead within 2 seconds of arriving on the scene?

Brown, Gray, Rice--these young black men are three of hundreds like them.  Their murders--and yes, they were murdered--have all gone unpunished for various reasons, such as prosecutors who refuse to prosecute, grand juries that refuse to indict, and juries and judges that refuse to convict police officers.  Excuses are offered instead of action, and the summary executions continue.

Ooh, see the fire is sweepin'
Our very street today
Burns like a red coal carpet
Mad bull lost its way

Don't get me wrong.  I am not suggesting that extrajudicial killings are always inappropriate.  Much to the contrary, most of the time, when police officers kill, they do so in unquestioned self-defense.  When a person is shooting at police or others, or genuinely threatening to do so, the use of deadly force is justified.  I am not talking about these kinds of killings, and statistics that show that more than 500 black persons have been killed by police in 2016--a startling figure--obscure the reality that many of those persons were killed because they were engaged in criminal activity that left police with little choice, if any.

But if killing Michael Brown was OK, and killing Freddie Gray was OK, and killing Tamir Rice was OK, what sorts of police killings are not OK?  What will it take for us to agree, nearly universally, that a police killing was, in fact, unjustified and unjustifiable homicide that should be punished as a murder?  Shouldn't it be in every case that efforts to resolve the situation without killing are exhausted before the gun is fired?  At what point does summary execution become unacceptable?

Since the Castile and Sterling murders entered the public consciousness, I have seen lots of people attempting to side with the police who murdered these men.  "Sterling had a record," they said.  That's true, but lots of people have criminal records; that doesn't mean they should be executed.  "He was resisting," they said.  But the video I've seen doesn't show voluntary resistance. It shows the natural reaction a person would have to being pinned down by police based on a crime he hadn't committed.  I don't believe that any of that justifies the police officers' behavior.

I can see some space for a rational mind to disagree, even if I think it's wrongheaded.  So we fall back again.  Maybe that one might in some universe be considered justifiable, we say.

And then we look at Castile.  Castile was a law-abiding, model citizen. He had no record.  He had a concealed carry permit, which he announced to the police officer and was in the process of retrieving when he was killed.  His girlfriend was in the car. Her four-year-old child was in the car.  He did everything right, and the cop shot him anyway.

He was straight-up murdered.

Nevertheless, I've seen some half-hearted defenses.  "The video just shows the aftermath, not what happened before," they said. "Wait for the body camera video," they said.  "He didn't say the right words when talking about his CCL," they said.

Here we have a case that's clear-cut, for which there is simply no defense.  Perhaps the officer feared for his life.  But that fear was irrational. It was based not on objective facts or a rational interpretation of the situation, but on the unfounded belief that Castile was about the put the officer's life in danger.  What was the basis of that belief?  It's hard to imagine a situation in which a white man gets summarily executed for trying to notify the officer about a gun in the car.

You would think that reasonable people, on those facts, might be willing to concede that the Black Lives Matter movement has a point.  Maybe all those extrajudicial killings aren't as justified as we thought.  After all, if those killings were based on the race of the decedent, they are per se unjustifiable.  We've all been told that this sort of thing doesn't happen.  We were told that with Michael Brown and Freddie Gray and Tamir Rice and all the others.

But maybe that was a lie.

What will it take for white people to admit that it was a lie?

What will it take for white people who defend these bad-apple police officers to admit that, to them, black lives haven't really mattered much?

What will it take for the white people who have spent so much time and effort pointing out that ALL LIVES MATTER that it's really just an effort to enforce a status quo in which black lives don't matter at all?

What will it take for these people to understand that BLACK LIVES MATTER doesn't mean BLACK LIVES MATTER MORE but BLACK LIVES MATTER TOO?

What will it take for everyone to recognize that true support for police departments means making it not just possible, but reasonable, and expected, that bad cops get prosecuted for their crimes and get removed from police work?

The floods is threat'ning
My very life today
Gimme, gimme shelter
Or I'm gonna fade away

There is an old saying that to love your country means accepting what it does, right or wrong.  I have never subscribed to that view at all.  I love my country.  And when it does something wrong, I have a responsibility, based on that love, to say so and to do everything in my power to correct it.  The same goes for police.  I have a deep, abiding respect for the good people who serve us as police officers.  They put themselves on the line for us.  When we run away from danger, they run toward it.  But when bad police commit crimes, they don't just harm the people they damage directly.  They harm everyone by undermining the respect we have given them.  And when good cops and prosecutors allow bad police to flourish without consequences, even if all they are doing is standing idly by, they become as bad as the bad cops.  Their inaction is a poison.

That's why what happened in Dallas, a city I work in and live near, was so horrifying.  Like many large urban police departments, Dallas PD has made a strong effort to root out bad police and to re-earn the respect of the people they serve. They have worked to get the poison out. The five police officers who died, and the nine others who were injured, were protecting people who were protesting against police brutality.  They deserved better than they got.  I am not sorry that the man who killed them is dead, and aside from his family, I doubt you'd find many people who are sorry.

War, children, it's just a shot away
It's just a shot away
It's just a shot away

But maybe the tide is turning.  The old bigots are being exposed.  Finally, we're seeing some recognition of the point that some of us have been making for a long time--grudging recognition, but that's progress.  In To Kill a Mockingbird, Atticus Finch said, "First of all, if you can learn a simple trick, Scout, you'll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view ... until you climb into his skin and walk around in it."  What will it take?  I say that would be a good start.

I tell you love, sister, it's just a kiss away
It's just a kiss away
It's just a kiss away
It's just a kiss away
It's just a kiss away
Kiss away, kiss away

Lyrics from "Gimme Shelter" by M. Jagger and K. Richards. Copyright © 1969 ABKCO Music, Inc.

Sadness

One of the things that makes me me is my ability to compartmentalize my life.  Most of the time, we lawyers are spending our time getting paid to deal with other people's problems.  I don't think I could do my job without the ability to separate what I'm doing, when I'm lawyering, from the other things that I do.

And when I have other responsibilities or problems or tough times, if I can't do something about a bad thing right away, I tend to push it out of my active thought pattern until I can do something.

Just don't think about it.

The same goes for events.  Although the case could be made that these times we live in are the greatest times for humans of all time, and I certainly believe that the best for us is yet to come (and my only true regret in life is that I won't live long enough to see what we become), sometimes bad things happen.  And I have to go on, somehow.

Just don't think about it.

A very bad thing happened late in the night last Saturday.  A gunman who apparently had delusions of being affiliated with ISIL, who was a Muslim (although I'm not sure that it's entirely relevant to what happened), and who very probably was fighting some personal issues regarding his sexuality, armed himself with a high-powered rifle, went to a gay bar in Orlando, and opened fire, killing 49 people and wounding 53 others before he was killed by police.

I don't know how to deal with that emotionally, so I haven't.  I've just pushed it back.  That's my process.

 Just don't think about it.

Instead, I've spent more time over the last week than I usually would explaining, yet again, why we need to make some changes to our laws and our processes to try to keep this kind of thing from happening again.  I also wrote a blog entry, which you can read, expressing my frustration with people whose first, and usually only, inclination when hearing this horrible news is to hop onto social media and make sure that everybody sees they are #prayingfororlando.

But I haven't written or spoken publicly about the deep sadness I feel for what happened.

Now, with some space, I have to think about it, and to write about it.

I have more gay friends than I would have thought possible 25 years ago.  I have always considered myself liberal and open-minded to a fault, but for a long time I had a blind spot when it came to homosexuals.  I was for their freedom in theory, and I certainly respected their right to exist without persecution.  I was for gay marriage long before it became legal anywhere in the world.  But on a personal level, I felt uncomfortable around homosexuals.  My immature brain told me that if I wanted a political career--something I considered long before--it would be better not to get too close, to distance myself from people who were pariahs in our society.  If I ever wanted to be elected to high office, it would be better not to have any whispers about my being close with gays.

When I look back on that me, even though I understand the logic behind my rationalization, I very nearly don't recognize myself.  As a general proposition, I've always thought that the best way to act was to be nice to everybody, even the people nobody else is nice to.  Especially the people nobody is nice to.  I never had a problem applying that principle to people who didn't have as much money as I did, or who weren't as smart as me, or who had physical or mental disabilities, or who were of a different race, or who just weren't popular.  But I had a blind spot when it came to homosexuals.  That was something to snicker about, to make cutting remarks, to tease.  I'm sure the work "fag" escaped my lips on more than one occasion.  I really don't know why I was like that.  But I am deeply ashamed of it.

When I came to realize how wrongheaded I was, I changed.  Now, my 40-year-old self doesn't care what people think about me.  I count many gay people as friends, some as close friends (and I wish I had more). Somewhere along the line I began to recognize that if you have any hope of being a good person in this world, you have to be a friend to others first.  If wealth or power or status flow from that, it's great.  But being wealthy or powerful or famous is meaningless if you treat people poorly on your road to getting there.

When I think about what happened in Orlando, I think about N and J and T and D and C and B and E and T and A and R and L and P, and about so many more, some of whom are out and proud, and some who stand with one foot in the closet.  I think about them having fun in a place that is supposed to be safe for them to be, where they can be themselves, not hiding from a society that still treats them as second-class citizens. 

And I think about the violation of their safe space. 

And I weep. 

I almost never cry; I'm not wired that way; but this is an exception.

Just don't think about it, my brain pleads.  I ignore the request.

It could have been any of them.  And for someone out there like me, it was one of them. Or 49 of them. 

It makes me angry.  I'm full-on livid, in fact.  You see, we're not done yet.  We're on a long journey toward equality.  We've taken a few really big steps, but the road ahead of us is perilous and filled with obstacles. I can see the future we are working toward, and it is beautiful.  And 49 people who should've had the chance to see it, won't.

And it reminds me that I am mortal.  I will not see how it turns out.  None of us will.  And that is my sadness.

But we can't stop.

Don't pray. Act.

I'd like to think that I need to know about humanity can usually be gleaned from my Facebook feed.

But lately I've been giving some consideration to turning it off for a bit.

It was predictable, you see.  A horrible thing happened over the weekend in Orlando.  The most visible reaction on my Facebook feed was "Prayers for Orlando."  Sometimes it was styled with a hashtag:  #prayersfororlando.

I try really hard to accept that as the response people have to a tragedy.  There are many well-meaning people who want to express their sorrow, their grief.  For some, it is merely to say, "I'm thinking about you, and I acknowledge the grave thing that has happened to you."

If you are a believer, I suppose it's a rational response.  I accept that those who offer it are entirely pure-hearted about it.

But when I read it, or hear it, I get this terrible heavy choking feeling in the pit of my stomach.  It's a physical, visceral response to these stimuli, like all my internal organs are being squeezed and shunted to the side as the hurt and the anger and the sadness wash through me.  It is terrible and disgusting, like a vomit that won't come out. 

See, I've heard it before.  Yesterday it was "Prayers for Orlando."  Before that it was "Prayers for the Netherlands."  And before that it was "Prayers for Paris."  And "Prayers for San Bernardino."  And Prayers for Oregon."  And "Prayers for Charleston." And "Prayers for Paris" again.

Lots of prayers.  Poor return on the investment, mostly because—and I recognize that this is an uncomfortable truth—prayer is, for many people, what you do when you can't, or won't, or don't want to, do anything else.

So, don't pray.  Don't pray for Orlando.  Don't pray for anywhere else in the world that has suffered this kind of violence.  Don't pray for war-torn areas, for refugees fleeing the destruction of their homes, for famine-stricken areas, for those suffering from disease.  Because all of those prayers are meaningless if all you're going to do is pray.  They mean nothing if you're not going to back them up with action.

Give blood.  Donate money.  Volunteer.  Ask someone who's hurting what you can do to help.  Advocate for better laws.  Vote. 

When you hear someone say that the people killed or injured in Orlando deserved it because of their lifestyle, speak up and say no--no one deserves this.

Write. Speak. Spend. Vote. Give.

Then grieve.  Then resolve to make the situation better, and do something else that moves us toward that.

And once you've done something, if you want to pray, go ahead.

But not before.

You be the judge

Once, when I was a young attorney handling a big case by myself, I had a hearing in front of the judge on some matter.  Although my presentation was on point and I thought I had the better end of the argument, the decision went the other way, as happens sometimes.  It was disappointing, to be sure.

I mentioned this to my mother soon after getting the bad news, and her reaction was to ask if the judge had been bought off.  I laughed.  "No, that doesn't seem likely," I said.  While I appreciated her being my advocate, the truth is that most judges aren't crooked at all.  They're human beings, and they come to the job with certain prejudices and experiences that creep into the decision-making process.  Almost all judges work hard to look at cases objectively and to render fair decisions.  It's an extremely difficult job that's easy to get wrong.

Knowing what I know about judges, and about federal judges in particular, I was made very uncomfortable with the comments made by GOP presidential nominee Donald Trump about the federal judge who's overseeing a case in which Trump and one of his companies are defendants.  Trump is the defendant in a class-action suit brought on behalf of people who were allegedly defrauded into paying Trump thousands of dollars as part of "Trump University."  Trump University was a seminar series, the stated primary purpose of which was to teach people how to make money by investing in real estate.

Trump's customers, or perhaps the better term is "marks," paid his company between $1500 and $35,000 per course and received...well, not much by way of actionable education.  There is a substantial chance that they were duped by Trump's public persona as a high-flying billionaire who transforms everything he touches into gold (maybe even literally) into thinking that Trump is some sort of financial guru.  It's possible that Trump isn't even actually a billionaire (much less being worth the $10 billion he claims), and his current financial standing, whatever that might be, is primarily the result of being handed his slumlord father's real estate empire and managing not to bungle it entirely away over the last 40 years.

I can't imagine paying anyone $35,000 to tell me how to make money (because, among other things, there is a substantial chance that the advice is going to be something like "get people to pay you $35,000 to tell them how to make money"), and I'm not sure how much sympathy I have for people who bought into the Trump myth.  Legally speaking, however, the fact that a fool and his money are soon parted doesn't mean it isn't fraud when you part a fool from his money.

Which brings us to this class-action case in California.  The judge in that case, Gonzalo Curiel, recently ruled that the case could go forward to trial (and will sometime later this year, after the election).  Procedurally, this was simply the denial of a motion for summary judgment.  Civil cases can be ended early, without a trial, if it is clear that one side or the other cannot raise enough of a dispute about the facts to justify putting those facts to a jury.  Juries decide which side's version of the truth is more likely than not and give a verdict for the plaintiff or the defendant.  The judge decided that there was enough meat on the bone, so to speak, to allow the plaintiffs' case to proceed to trial.

By the way, that's a perfectly normal thing to happen.  Summary judgment happens a lot in weak cases, but the defendant asks for summary judgment in almost every case, and it's denied in every case that actually goes to trial.

The disturbing comment on this situation was this:  Trump accused the judge of bias against him because the judge is "Mexican."  This is a superficially attractive argument.  After all, Trump has a long history of outrageous comments about Mexicans in particular.  Early in the campaign, he indirectly accused most Mexican immigrants to this country of being "rapists."  He has made the building of a huge wall along the U.S. border with Mexico--at Mexico's expense, no less--the centerpiece of his campaign.  So you might reasonably expect a Mexican judge to be justifiably biased against Trump.

Here's one problem with that:  Gonzalo Curiel's parents were (legal) Mexican immigrants to this country.  He was born in Indiana.  He is an American. He is not a Mexican.  You might refer to him as Hispanic, or as Latino, or as "having Mexican heritage."  But he is just as much an American as anyone else who was born here.

But that's not even the worst problem with Trump's comment.  Trump's whine about bias is off-putting, and it smacks of sore-loserism.  But when you flip it on its head, it is overtly racist.  What Trump is really saying is that only a white judge is capable of being fair in this case.  After all, the only things we really know about Judge Curiel, from Trump's perspective, are that (a) he's "Mexican" and (b) he made a decision in the case that Trump didn't like.  The implication is that a white judge would've made a different decision because he wouldn't have been biased.


In case you might be thinking that this assessment of Trump's comment is somehow unfair, you should also be aware that Trump later doubled down by saying that he would have similar problems with a Muslim judge.  (Trump has proposed barring Muslims from entering this country--a sort of religious test for immigration and tourism.) Again, the implication is that only a judge that looks like Trump is qualified to decide whether Trump committed fraud or not.



Defendants whine about "unfair" judges all the time—they'll do anything to excuse their misconduct or to justify why they shouldn't really be held to account for what they did.  But the way Trump has chosen to handle this, the point he's decided to make, the hill he's decided to die on, illustrates that he is perfectly comfortable in the clutches of overt racism.  And that's not what we need in the White House.  We can barely stand having it in the country at all.

In defense of closed primaries

I voted for Bernie Sanders in the Texas Democratic primary, and I stand by that vote.  I'm in substantial agreement with him on most issues.  I continue to believe that he's the right person to be the 45th President.

But it looks today like that's not to be.  It looks very much like there have been some shenanigans, especially in Arizona and New York.  Unlike many of my fellow Bernie supporters, however, I don't think those shenanigans have been the product of some concerted* effort to install Hillary Clinton as the nominee through vote suppression and fraud.  Rather, it can be attributed mostly to inertia (in New York, which has absurd rules for primary voting) and racist malevolence (in Arizona, where substantial Republican majorities in elected office are working hard to keep casual voters and racial minorities from casting ballots).  Hillary isn't to blame for either of those factors.  As the frontrunner, and until voting actually began, the presumptive nominee, she was merely the beneficiary.

* - N.B. While many people use the term "concerted" to mean "vigorous" or "strong," it actually means "joint," as in "in concert," in that a "concerted effort" means a group of people working together toward a common goal or purpose.

What caught Bernie out in New York was something that's largely beyond his control.  To vote in a partisan primary, New York requires you to be a registered member of that party for six months before the election.  That means that unless you were a registered Democrat in October 2015, you were excluded from voting in yesterday's Democratic primary.  What makes that absurd is that it's very difficult to get new voters engaged enough, six months in advance of an election, to organize any significant number of them to do what's needed to vote.  That's just human nature, and the political powers in New York, recognizing that, simply keep the rules that way to keep voting totals low.

While I think that's ludicrous and anti-democratic (small d), you will not hear me criticizing the closed primary system.

Historically, although their relative numbers have fluctuated, party registrations have hovered around the following:  35% Democratic, 30% Republican, 35% independent or third-party.  The partisan numbers tend to go down in times of hyperpartisanship and up at other times.  Lately it has been fashionable to declare yourself an "independent," on some theory that being a partisan means being a mind-numb robot.  In the last few years, lots of people have decided to "stick it to the Man" by changing their voter registrations to independent or to some third party (commonly Libertarian or Green).

I'll say it now:  Unless you are committed to building a political party from the ground up, becoming a registered member of one of these microparties is ridiculous and foolish.  (I also happen to think that trying to build a political party from the ground up is also ridiculous and foolish.)

You're not sticking it to the Man.  The Man doesn't care what your party registration is.  Ultimately, what matters is how you vote in November, and your party affiliation means nothing in November.

But what you are doing is making it much more difficult for you to have a say in who the major parties' nominees are, at least in states with closed primaries.

And I think that states should have closed primaries.  After all, the purpose of a primary election is for members of a party to choose the person who appears on their line in the general election, not to have a "first cut" of candidates.

Like it or not, we have a system in which the two major parties dominate elections.  Elected independents—Bernie notwithstanding—are rare.  Elected microparty candidates are even rarer.  The reason for this is simple:  It's very, very difficult to organize to win elections.  Parties provide continuity and an apparatus of support for their candidates.

We also have a binary system because the American people are largely binary in their approach to politics.  If you forget about the party labels and just ask people their opinions on the broad topics around which our political system is organized, something like 95% of Americans will be at least 75% aligned with the views of one major party or the other.  In fact, the broad majority of self-described independents tend to align with the Democrats on the issues.  Of course, we don't vote on issues (usually); we vote on candidates.  It's certainly true that people who aren't sufficiently engaged with the political process to register with the party they align with politically are going to vote for candidates they don't align with, for reasons of personality (either in favor of the candidate they vote for or against the candidate they don't vote for).

But I don't think it's too much to ask that you register as a Democrat to be able to vote in the Democratic primary.  If you can't bothered to declare yourself a Democrat, why should you have any say in determining the Democratic nominee for any particular office?  If you want to have a say in the party's nomination process, join the party!  It's free, and if you don't like our candidate in November, feel free to vote for the other guy.  We'll never know, unless you say so.

Where New York errs is in making it so difficult to get qualified to vote in a partisan primary.  If you're going to hold an election on April 19, a reasonable cutoff for voter and party registration is March 20, 30 days before.  Not October.  (New York also errs by requiring you to cast your ballot in your precinct on Election Day; it should permit no-excuse early voting, and it should make voting centers available for that purpose.  I've been pleasantly surprised by the approach taken by Collin County, Texas, where I live.  You can vote in any voting center in the county, either on Election Day or for about two weeks before.  They even provide up-to-the-minute statuses for each voting center so you can choose one with short lines.  They also have plenty of voting centers, unlike Maricopa County, Arizona, which implemented such a plan but slashed the number of centers available by two-thirds, which resulted in long lines earlier this year.)

I'm all in favor of getting casual voters and independents into the electoral process, but to the extent they are going to influence my party's primary elections, I want them to be members of my party. 

C

I'm not mad.  Really, I'm not.

And I'm not disappointed.  In you, anyway.

But I'm glad you didn't succeed. That would've been devastating.

I wouldn't call him a close friend.  We knew each other in high school. He was a couple of years behind me. We only shared one class, I think, choir.  At 15 he was still a little kid, especially compared to me.  I'm sure he got his share of teasing.  I hope I wasn't one of the ones teasing him, but I can't remember.


We reconnected a few years ago via Facebook, as people of our age do these days.  He was out.  The fact that he's gay didn't surprise me; sometimes you just know these things, no matter how carefully they're hidden.  But it's hard to be out in Arkansas.

I'm a different person from the one I was when I knew him in real life.  It took some time, and an experience I now regret (and about which I've previously written), for me to realize that being gay is like having blue eyes or freckles.  It's not a good thing or a bad thing; it's just a part of being human.  I used to worry that other people might think I was gay, like it was something to be guarded against, like the flu or drinking too much.  Better not hang around a gay guy too much, or people will think you are, too.  Back then, the voice in my head, the one that follows up stupid thoughts like that with so what if they do?--that voice was silent.

I'm hesitant to write this story.  It's really not mine to tell.  But it needs writing.

*  *  *  *  *

He came to me about writing.  He was finishing up his certification to be a counselor, and he wanted to start writing a blog, and he knew I wrote a blog, and I guess he liked it.  We exchanged a brief set of messages about the process--technical stuff, like how to set up a blog, and more substantive stuff, too.  My advice was what it is to every aspiring writer who asks me:  Write about what you care about.  Don't worry if no one reads it, or likes it.  The writing won't mean anything if it doesn't first mean something to you.

A few weeks later, he sent me a short note about a post I'd made about the Justin Harris incident, in which it came out that a state senator had "re-homed" two girls he and his wife had adopted, sending them to live with a man who proceeded to rape them, on the basis that they were "demonically possessed."  His praise was flattering and meaningful to me. 

I do write about what I care about, but I'd be lying if I said it didn't feel good to know that other people read it, and like it.

A few weeks after that, he was involved in a Facebook discussion, or argument, with a friend of his from college, about whether homosexuals are "born that way."  I wanted to step in on his side, in the thread, but I was unable to comment on the post because I'm not friends with the original poster.  I sent him a personal message instead:

[That] comment about not being born gay really sticks in my craw. I can only truly know my own experience, but I know that being straight wasn't a choice I made--it is just the way I am. I don't expect it would be different for anyone else, gay, straight, or other. But even if it were, so what? There are many choices that other people make that I wouldn't make. That doesn't mean they aren't allowed to make those choices or that discrimination against them on that basis is right. After all, religion is 100% a choice, yet we don't allow discrimination on that basis.

Ever the conciliator, he rose to his friend's defense, explaining that at least his friend, though ignorant, was talking with him about it, and that made him at least somewhat open to being educated.  I thought his approach was amazing and strong.

He thanked me for my support, and I explained to him why I offered it--because there was a time, years before, when I could have offered support to a friend, and didn't.  When I should have offered support to a friend, and didn't.  When I made a fool of myself, and hurt my friend in the process.

Better not hang around a gay guy too much, or people will think you are, too.

That little voice was silent that day.

So I can't be silent now.

*  *  *  *  *

He got a counseling job, then another.  This new one was going to be a challenge--being some sort of social worker in an impoverished county in the Delta.  He embraced it with relish and excitement.  I could tell that this was the kind of work he had been looking for all along.

But fate intervened.  He became sick--some sort of flu, that turned into pneumonia, and a lengthy hospital stay and plenty of missed work.  Even the most understanding supervisor would have his limits with a new employee.  It took a long time to recover.

I still don't have the full story, but what I can surmise from his comments on social media is that the job had gone away.  When you lose a job, it's easy to feel like a failure.  Forget about the loss of income; it's the feeling of failure that hurts.  When you lose a job that you've worked toward for a long time, it hurts more.  It hurts even more when it's nobody's fault, but it can somehow still feel like it's your fault.  If only I'd been stronger.  There's supposed to be a little voice in your head that says, don't be silly; this has nothing to do with you; sometimes bad things happen no matter what you do.

But what do you do if that voice is silent?

*  *  *  *  *

I had been off social media for a few days, busy with work.  When I got back on, his messages were at the top of my feed.  They were disturbing:

"I'll miss you all.  I love you."

"If I died today, what would you have wanted to tell me?"

"Giving up isn't cowardly.  It's finding freedom in a way that you never knew existed before."

Immediately I sent him a personal message.  I was intentionally cautious; he was clearly depressed, but I didn't know if he was serious about suicide, so I didn't want to plant the seed.  I split the difference.  "On the chance that you're saying what you could be, I want to reach out to you and remind you that there are many people who love you and who want the best things for you, that I'm one of those people, and that your story isn't finished being written yet. And, come to think of it, I think everybody could stand to hear that once in a while anyway."

I don't know if he saw it.  If he did, he didn't respond.

*  *  *  *  *

Four days later, he posted on Facebook that he had indeed attempted suicide, that he'd been hospitalized for a few days, and that he was headed to a 28-day program.  "I'm so sorry that I disappointed you all. I hope you can forgive me."

I'm not mad.  Really, I'm not.

And I'm not disappointed.  In you, anyway.

But I'm glad you didn't succeed.  That would've been devastating.

*  *  *  *  *

If there is one thing I know to be true, it's that depression lies.  I have been depressed at times, though I'm lucky that it has never weighed on me to that point.  But there have been times in my life when I had to struggle to force that little voice inside me to speak up, to speak up for me, to counter the lies that my own traitorous brain was throwing on me.  When the pain gets to be too much, will you do anything to make it stop?

No matter how strong you are, there may be times when you can't hold back the tide by yourself.

*  *  *  *  *

I look back, now 23 or 24 years ago, to that little kid, the late bloomer, the tag-along with the nice tenor voice. I had a foot or more on him in height and maybe 150 pounds on him in weight.  I want the 17-year-old me to have hugged that kid, to have let him know that I loved him.  I want the 17-year-old me to have been able to do that, so that it wouldn't be so hard for the 40-year-old me to do it today.  I don't pretend that it would have made a difference in what happened, but we'll never know.

*  *  *  *  *

I hope that someday there is a good coda to this story.  When my friend gets out of his program in a few weeks, I hope the little voice inside him will have learned how to speak up again.  I hope that one day he'll maybe read this and know that I care about him, even if we're hundreds of miles apart, and even if we weren't all that close to begin with.  I hope he'll come to understand that I know how strong he really is.  I hope he'll know that I'm not disappointed in him, that I don't think he's weak or cowardly. I hope he'll recognize that even things that feel like failure aren't always bad.

And most of all, I hope he's not disappointed in me.

*  *  *  *  *

The National Suicide Prevention Lifeline is available 24 hours a day, 7 days a week, 365 days a year.  If you are having thoughts of suicide, don't wait:  Call (800) 273-8255 now.  You do not have to bear your burdens alone.  There are people who care about you, even if you don't know it.

(Im)pertinent questions

I got to a (heated? my opposite number would probably call it that) discussion the other day—with someone whom I don't know—about Hillary Clinton. I'll preface this by saying that if Hillary is the Democratic nominee, I will vote for her, no question, but in the Texas primary, I voted for Bernie, and—all else being equal—I would prefer that he get the nomination.

 

The discussion arose because I objected to being called a "BernieBro." My support for Bernie has zero to do with Hillary being a woman; it has nothing to do with my wanting to get something for free; and, as indicated above, I’m not a “Bernie or Bust” kind of guy. As much as I like and admire Hillary, she doesn’t have my support for the nomination because the positions she’s staked out on the issues I think are most important are too conservative. In particular, I think Hillary is insufficiently concerned about wealth inequality, and I think that as president she would be likely to institute policies that would increase it, not decrease it.

 

I think you can probably project onto Hillary Clinton whatever views you want on the issue of wealth inequality, at least on a personal level. She’s a Democrat, so you would expect her generally to be opposed to wealth inequality, but she’s a DLCer, so maybe not. Wealth inequality is a big women’s issue, so maybe; but she’s personally rather wealthy, so maybe not.

 

Of course, her personal views are largely irrelevant. What causes my misgivings about Hillary—aside from some structural problems I have with the way the system appears to have been gamed for her in ways that hurt the Democratic Party, which may or may not be her fault—is a figure I ran across the other day from OpenSecrets. According to their analysis, Hillary’s campaign (along with nominally outside groups that align with her) has received more than $21 million in contributions from people who work in the “securities and investment” industry. That’s the largest single industry to contribute to her election effort. A further $5 million has come from people who work in “miscellaneous finance.”

 

I’m not naive; I know that money is required to run campaigns, and that money has to come from somewhere, especially if you’re not a billionaire and can’t simply write the check. When the modern campaign finance rules were written shortly after Watergate, it was possible to fund your campaign based on contributions from people who supported your election because they liked your views, or how you voted. Yes, contributors likely got access in ways that non-contributors didn’t, but the quid-pro-quo was less explicit.

 

In today’s world, I don’t think we can live under that pretense anymore. The amount of money raised and spent is so enormous that it can’t not have an impact on how an elected official will vote. When I was in college, a candidate for Congress would need to have access to around $250,000 per election cycle to run a credible campaign. That’s a lot of money, but it could easily be raised from small donors entirely in one’s district. Today, which is closer to 20 years later than I like to admit, to run for Congress, it takes 12 times as much to run a credible campaign.  For that reason, it’s necessary to raise funds virtually every day of the year to keep up. So the lobbyists, the executives, the moneyed elite have a political advantage over the common person; they can save a candidate an enormous amount of time by contributing bundled hard money to the campaign and other money to PACs that support the candidate.

 

That is the system we live under, and it will continue to be that way as long as Citizens United is the law of the land.

 

So the question is, why would these people contribute to political candidates? I will admit somewhat to being puzzled over that question generally.  I've never made a political contribution of any size to any candidate for any office.  Probably the biggest part of the reason for that is that I've never really been in a financial position where it made sense to spend money in that way.  But I've never been particularly motivated to have "my guy" in a particular office.

 

But I am particularly interested to hear the answer with regard to contributions from the financial sector to Hillary Clinton. After all, these are bankers and stock brokers and financial advisors and hedge fund managers—people whose primary job it is to understand how best to invest money for a profitable return.

 

I jokingly asked my opposite number, a Hillary supporter, if she thought maybe they contributed to her because they liked her hairstyle. Seeing an opportunity, she complained that I was a sexist for saying that she only supported Hillary because of her hairstyle and not because she is an accomplished person who would make a good president.

 

Yeah, I don’t follow it either.

 

(For the record, I couldn’t care less about Hillary’s hair or anything else about her physical appearance—body, clothes, hair, or whatever. I can’t believe it even had to be said.)

 

When her attempt to smear me didn't work, she shifted gears:  Isn't your candidate, she asked, owned by the NRA?  Didn't the NRA buy him his Senate seat in Vermont?

 

Actually, Bernie has routinely been given very low grades by the NRA—D-minus in the last rating, and frequently an F.  He does not strike me as a friend to the NRA.  He does represent a rural state with a lot of hunters, and he has taken what I think is a very commonsense position on gun control:  What is right for New York City may not be right for Vermont.

 

But we weren't talking about Bernie and guns.  We were talking about Hillary and the millions of dollars she has taken from people who work in the financial services industry.

 

Anyway, I couldn’t pin her down to an answer to my question: If Hillary’s so well aligned with my views on banking and the economy, and, more largely, on wealth inequality, why are all of these bankers bankrolling her campaign, to the tune of more than $26 million?  Many of these checks are written for the maximum amount allowed by law, $2700.  And these aren't secretaries and mailroom clerks writing these checks.  They're top-level executives.  To someone who makes millions of dollars per year, it's a small amount (which they tend to augment with larger contributions to PACs).  What do they know about Hillary that isn't apparent to the rest of us?  What are they expecting in return for the financial help they're giving her?

 

These people do not strike me as the kind of folks who don't expect to see a return on their investment. 

But I am nothing if not fair.  I would like someone to give me an answer to my questions that is something other than "she's on the banksters' side."

A pox on all your houses

It seems like every few months, we go through this again.

In some far-flung locale, or not-so-far-flung, some idiots amass a bunch of explosives or bullets or whatever weapon they can find, and they go about the business of killing a bunch of innocent people, on purpose, with purpose.

The reasons don't really matter.  It could be because they don't like abortion.  Or they don't like a cartoon somebody published.  Or they don't like that their leader was arrested.  Or maybe they're crazy.

The reasons don't matter.

The reactions are predictable:  Ban the weapon! Ban the religion of the people who did this terrible thing!  Ban abortion!  Ban cartoons!  Build a wall, higher, deeper, more expensive!  Bomb Iran! Bomb Syria! Bomb Detroit!

Or:  Be reasonable!  Not ALL Muslims! Not ALL gun owners! Not ALL cartoonists!

And always:  For God's sake, stop this from happening again!

I don't mind saying it:  I'm really sort of numb to it.  Which, if you think about it, is the only reasonable reaction.  (Note that I didn't say it's the only valid reaction.)  Terrorism isn't an ideology.  It's a tool, often used to promote an ideology.  If your reaction to terrorism is to be scared, it's working.

But if you're sitting in your home in Peoria, Illinois, or Hot Springs, Arkansas, or St. George, Utah, and your reaction to a bomb going off in a European airport is to be scared of imminent terrorist action against you...I'm really not sure we can be friends.  You seem rather emotionally volatile.  In a less sensitive time, you'd be called crazy.  Nuts.  Off the deep end.

That's really not the point of this blog entry, though.  The point is that if you are an adherent to a particular religion, and you think you are somehow better than people who adhere to a different religion, somehow more noble, somehow less prone toward violence in the name of your religion, and on that basis you want to take some aggressive action against the people who adhere to the same religion as the people who are doing the bombing and the murdering, like bombing a country where many of them live or banning them from traveling here, or whatever:

You're part of the problem.

Instead of offering constructive solutions, or introspection, or any of the other things that reasonable, rational, sane people do when confronted with an evil act, you're offering a gross overreaction.  Just bomb them.  Just ban them.  Don't bother looking for causes; act, for God's sake.

For God's sake.

Yeah, as usual, there's the problem.

I'll take the outsider's view, because that's what I am.  But this outsider looks at you people, arguing over whose imaginary Supreme Being is real or more powerful or more worthy of worship, to the point of killing each other over it, and I can only ask myself:

What. The. Actual. F---. Is. Wrong. With. You. People?

Look, I get it.  You were raised in a religion. (So was I; I saw through it at an early age; I was too weak to admit it for a quarter of a century; it's not too late for you.)  You "feel the power."  (No, you don't.)  You're worried about what happens after you die. (Hint:  Nothing.)  Or any one of a thousand other reasons why people engage in the grand self-deception that is religion.

Doesn't matter.  It's a lie.  Your religion, whatever it is, does not make you better than anyone else.  Your religion is not a religion of peace.  Your religion doesn't justify anything like what you're advocating, and the only reason why you think it does is because you are happy to twist your religion into whatever damn thing you want it to be.

And it doesn't matter if your religion is Christianity, or Islam, or Judaism, or anything else.  All of those religions are composed of people.  People do bad things.  Religious people especially, because they deceive themselves into believing that it matters.

It doesn't matter.

What matters, friends, is how you treat other people.  Are you kind to others?  Are you helpful?  And no, I'm not talking about being "cruel to be kind."  I'm not talking about helping others to "find God."

When you're telling President Obama he needs to rain down bombs onto other people, is that a kind thing?  Can you put yourself in the shoes of someone who's on the other end of that bomb's trajectory, and say that it's a good thing to do?  Do you really think a bomb launched by our military against people in a far-off country is different in any real way from the bomb that was set off in that subway in Brussels?

It's not.  And it's time to stop pretending it's different.

And if your religion tells you that it's justifiable, your religion is lying to you.

"But, Jim, you sound angry."

Yeah, I'm angry.  I'm angry because all I want is peace, and on one hand I've got idiots who are bombing innocent people, and on the other hand I've got idiots who can't manage to string together a response that reaches beyond "bomb them back."

I'm angry.  The better question is, why aren't you?

A complicated man

I have resisted the urge, strongly felt since Saturday afternoon when I learned of Antonin Scalia's death, to put any thoughts at all on the screen (I almost said "on paper") about the man and his legacy.  I am at best a casual student of the Supreme Court; its work rarely touches on my legal practice, and I have no particular claim to being a scholar of the Constitution and of the court whose work consists primarily in interpreting it.

But Nino Scalia has always been a fascinating and complicated person to me.  He was, by all accounts across the spectrum, a brilliant legal scholar.  His opinions were enjoyable to read, at least in the sense that they were often funny and ascerbic, with beautifully incisive and insightful commentary.  We disagreed about many things, maybe even most things, but I can recognize even in my intellectual opposite that he had a great love for this country and for the Constitution that created and governs it.

I met him once.  He was a guest speaker in my Constitutional Law I class at Georgetown in 1998.  His commentary came at a time when I was not mature enough to listen to what he had to say, or at least to record it for what it was.  He did not call on me for a question, and that's probably a good thing, as I doubt I would have had anything meaningful to ask him, and probably would have used the opportunity to pick a fight with someone who was far better equipped than I was to carry the day.  But I remember him being funny, offering jokes and the same wryly-smiling, sarcastic and sardonic demeanor that shines in many of his court opinions.  I shook his hand after class and said, "It's an honor to meet you."

He was friendly with Ruth Bader Ginsburg--the best of friends, in fact; they played tennis together, and they both passionately enjoyed the opera--and that, to me, is as good a character reference as one could possibly have.  I don't know RBG and although I might have met her once or twice at Georgetown events, I'm sure I've never spoken to her, but her late husband, Martin, taught me nearly everything I know about tax law and policy.  He was an amazing teacher who frequently displayed the same sort of wit that Scalia was known for.  (This ends the name-dropping portion of the blog post.)

I have no need to write a hagiography of Justice Scalia.  In fact, despite everything I've said up to this point, I find it hard to hold him in professional regard at all.  He had a carefully cultivated reputation for being what he referred to as a "textualist" when it came to the Constitution--and, for that matter, to all statutory interpretation.  By that he meant that the text governs; that the words mean what the words mean, and there is no need of a searching inquiry as to what anyone who wrote them might have meant.  (Some confused commentators regard him as an "originalist," a term he flatly rejected for its connotation that what the Framers of the Constitution meant governs; rather, what the text says, governs, in his jurisprudence.)

The problem with that approach is the great divide among Constitutional scholars (and the less scholarly of us):  Does the Constitution mean only what it says, in the most restrictive sense, or does it provide a framework of principles that are applied through a process of interpretation?  There are merits and demerits on both sides of that divide.  I don't fault Scalia for standing on the other side of it.  What I fault him for is the quiet abandonment of those principles when they become inconvenient.

That is, Nino wasn't really a textualist at all, except when it conveniently aligned with his sense of where cases should be decided and principles should be applied.  He proved as much in his concurring opinion in Bush v. Gore; he wanted Bush to win, so he cobbled together a theory that made that outcome possible.

Likewise, Scalia could be at his most vitriolic when it came to the rights of sexual minorities. His dissent in Lawrence v. Texas, a 2003 that overturned state criminal laws against sodomy, complains loudly about the "homosexual agenda," the focus of which is "eliminating the moral opprobrium that has traditionally attached to homosexual conduct," as though that's something bad.  As fine a legal mind as Scalia had, his position on homosexuality illustrates why he was not the kind of Supreme Court justice we need.  Above all, the Court must stand ready to protect our hard-won rights as the last bastion of the Constitution against an aggressive government.  It is no business of the government what consenting adults do with each other in the privacy of their bedroom.  It is simply not something that the government should have any interest in.

Whether he was motivated by a personal dislike for homosexual conduct, or by religious conviction, or by the need to repress personal desires, Scalia's positions that became law worked to oppress millions of Americans and to deprive them of their basic rights and dignities, and those that didn't become law, would have done the same if only more justices had agreed.  This illustrates why we must be careful not to follow people just because they are learned, or intelligent, or powerful; their opinions can be wrongheaded despite all of these things; they are subject just as we all are to petty prejudices and lack of foresight.  It's important to remember that they are human.

This point is best contained in an aphorism ascribed to Robert H. Jackson, who was the Attorney General under FDR, who was the chief prosecutor for the war crimes trials at Nuremburg, and who held the same seat on the Supreme Court that Scalia held:

We are not final because we are infallible, but we are infallible only because we are final.

I feel sorry for his family, who lost their patriarch this weekend.  To them, he wasn't a powerful public figure; he was a husband, a father, a grandfather.  They feel his loss deeply, I'm sure.  As above, it's important to remember that important, famous, powerful people are human.

But I do not feel sorry for the country, which will be much better off for his absence from the Court.