Racial Solidarity Helps All

April 17, 2021

Too many whites lack the security of a livable wage because so many resist letting African-Americans have it. Somehow whites think they’ll do better if Blacks don’t. That’s a mistake. White craftsmen and laborers became abolitionists because competing with slave labor dragged their earnings down. The American labor movement understood the importance of unity. Arthur J. Goldberg, then General Counsel of the Congress of Industrial Organizations or CIO, filed a brief supporting integration in Brown v. Board of Education on behalf of the union, which shortly merged to form the AFL-CIO. Full disclosure, at law school, I argued in moot court in front of then Justice Goldberg and learned at close range the power of his mind and instincts.

A congenital liberal, I never lost my support for unions. I don’t ignore their faults – whether denying a client her retirement, which turned out to be peanuts anyway; or unions’ right-or-wrong defense of police who kill. But the absence of unions means that the working class consistently gets screwed and has for half a century. So no, I’m not a liberal who looks only at his own welfare and ignores the injury to others. I’ve lived in West Virginia, knew coal miners and their kids and I do grieve for what’s happened to them and to factory workers, even while wanting to put them into safer, better jobs that are more consistent with the welfare of the whole country. Their problems have many sources, including government’s failure to restrain capitalism, and conservative support for policies like globalization. But their complaints are real.

It wasn’t until Nixon and Reagan started to split the labor movement on the anvil of race that the power of working people in America began to decline. Real wages have barely changed since Reagan. The plight of American workers will not improve until they relearn the message of unity.

How about the economy? America became an economic powerhouse because the Founders created a single continental market, allowing us all to buy, sell, hire and work with and for each other. Taking any group of us down diminishes that market. Jackie Robinson didn’t destroy baseball by playing with the Dodgers – he grew the market for players and fans, just as Michael Jordan, Tiger Woods, Serena Williams, and others did. I hardly think Toni Morrison destroyed the market for literature!

I’ve been asked if I never lost a job to an African-American? Absolutely and vice versa, plus it’s nonsense to think being born with light skin diminished my life chances. One of my fellow students at law school was Drew Days, who became the first African-American head of the Justice Department’s Civil Rights Division and later Solicitor General of the United States. Jealous? Get real. We cheered, Go Drew Go, get all you can do done! I’m sure his classmates at Hamilton felt the same way. We all mourned his recent passing.

We benefit from each other’s economic activity, whether ethnic restaurants, major digital or scientific developments, or a unified labor movement. Welcoming each other to full participation in the economy benefits us all. I want real progress for the working classes but they are legendary for surrendering their own interests to rich capitalists, who have often blocked their progress on an anvil of racial prejudice, and they are doing it again.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on April 20, 2021 .

“Maximum Pressure on Iran” Has Failed

April 11, 2021

If you haven’t already seen this editorial, I strongly recommend it. Those of us familiar with Iran, know the Times has it right. And it’s crucial that we make sense to the world as well as to Iran, and avoid pandering to nonsensical political bluster at home.

From The New York Times:

Maximum Pressure’ on Iran Has Failed

A return to the nuclear deal is the first step out of the morass.

Misconduct in Mislabeled Criminal Justice

April 5, 2021

Lawyers can get cynical, especially in fields they see up close. A judge called me over in the halls of a courthouse to tell me he believed what one of my clients said. And when I asked him why he didn’t acquit him, the judge said, “I couldn’t do that to the police.” My client went to jail so the police wouldn’t be embarrassed. Other judges told me they believed the police only half the time – but they didn’t know which half. Their decisions suggested it never mattered. A federal Marshall told me he wouldn’t tell the truth about theft by cops even if I subpoenaed him. Police in a course designed for them told me they arrested Black people carrying hunting rifles in a completely legal and unthreatening manner, realizing they themselves were violating the law they were sworn to protect. You can get pretty cynical.

And then the cases attacking widespread stop and frisk of people whose only crime was walking while Black. The Albany police chief told the Times Union years ago that there were as many drug crimes in white suburbs but magically it was only Blacks who were arrested. And we all know or should know by now that people in prison are overwhelming Black, after being railroaded at every step of the system of injustice, and the economic, family and electoral consequence of discriminatory policing – the fact that prosecuting attorneys can ramp up the charges so that defendants don’t dare plead innocent and go to trial in a court system from which they expect no favors.

So I am disgusted by the lack of bite in the Albany so-called plan on fair policing. I am disgusted by prosecuting attorneys who plead that they are in terror that we might require fairness and honesty from them like we require of everyone else. The court we call Supreme defends prosecutors who commit fraud and fail to turn over the information that long established law required them to turn over, or who, instead of dropping charges, hid evidence that they were going after the wrong person and then put those people in prison for crimes they didn’t commit. And then they resist our passing law that would require their honesty. I sat in the U.S. Supreme Court in front of one of the lawyers defending one of those prosecutors. He and other prosecutors were discussing the tools available to help prosecuting attorneys sharpen their skills, in the course of which he told his fellow attorneys that the plaintiffs had a very strong case against the prosecutor he was defending. But the Court wouldn’t allow any litigation against a prosecutor for misbehavior no matter how blatant. Yes, you can get pretty cynical.

No I won’t be satisfied until I see real bite and action on rules that reign in everyone involved in so-called “criminal justice.” And I won’t feel safe until they do because the cynicism and explosions of anger from that misbehavior hurt everyone. I won’t feel safe while prisons function as education for crime for which Blacks need not apply. I won’t feel safe for my Black friends who have to walk, drive and work while Black. American hearts have no trouble bleeding for Jews in the Holocaust, Uighers in China, Yasidis in Iraq and Syria, Rohingya and other Muslims in Myanmnar, Christians and Muslims in much of the world. But we have our own persecution going on in front of our noses against Blacks, People of Color, Indigenous Americans and others. It’s time to stop it and start living up to what we call American ideals.

— This commentary was scheduled for broadcast on the WAMC Northeast Report, on April 6, 2021.

Majority Rule, the For the People Act and the Filibuster

March 29, 2021

This week the Senate is considering the For the People Act. The House has already passed it. I mentioned the bill in my March 2 commentary. The For the People Act would:

  • restore the Voting Rights Act,
  • prohibit voter suppression,
  • end partisan gerrymandering,
  • overhaul federal ethics rules,
  • reverse the effects of the Citizens United decision which unleashed corporate treasuries on elections
  • block voter suppression bills in states trying to keep extremists in power and
  • prevent other attempts to rig the elections by keeping legitimate voters from the polls.

Thus the Act would eliminate rule by an extremist minority and forbid many ways parties suppress and gerrymander votes in order to protect their seats against the voters in each of the states. Currently, with Republicans dominating more than half of the state legislatures, they’re trying to protect their own seats in order to regain control of both the Senate and the House. That’s not democracy. As the Brennan Center has been saying, “the best way to defend democracy is to strengthen democracy.”

This is a major battle and will affect every issue in Congress now and for the next decade. Environmental legislation, social justice, rebuilding national infrastructure and the economy all depend on whether we have democracy or minority rule in America.

The other major tool of minority rule is the Senate filibuster. Republicans will filibuster to block the For the People Act. The Constitution is replete with protections for minorities but says nothing about the filibuster, which used to require that senators keep talking, sometimes by reading the phonebook, in order to block legislation. Now they need only file a piece of paper that requires 60 votes for action. Even in the older form, the filibuster largely blocked racial justice, blocked the Civil Rights Acts of the 1950s and 1960s. The filibuster protected segregation, and blocked efforts to end the reign of murder and intimidation which threatened children seeking an education, killed four young girls in a church, killed Andrew Schwerner, James Chaney, and Michael Goodman for the “crime” of helping people register to vote, and attacked the Freedom Riders in integrated busses with fire hoses, bombs, and metal pipes. Anti-lynching legislation was introduced more than a century ago but was still being blocked last year. What’s American about lynching except the persistent lawlessness of white supremacists? Thanks to the filibuster.

Some Democrats fear they may need the filibuster if Republicans win the Senate in 2018 or the White House in 2024. But Republicans use the Senate mostly to block action, not scheduling hearings for Merrick Garland, not passing civil rights legislation. Since Republicans have been devoted to preventing government action, preventing regulation, tearing down everything from the Post Office to the Environmental Protection Agency, they win just by saying no. The filibuster could protect Democrats against unpalatable judicial nominations only if Republicans won both the White House and the Senate – the House can’t stop judicial nominations – or block legislation only if Republicans won all three branches of the government. And of course the Democrats can’t really control whether there will be a filibuster when the Republicans are in power. So the overwhelming odds are that it will be much better for Democrats to get rid of the filibuster than keep it.

Majority rule depends both on getting rid of the filibuster and passing the For the People Act.

— This commentary was scheduled for broadcast on the WAMC Northeast Report, on March 30, 2021.

The Battle for the Survival of Democracy in America is under way in the Senate

March 25, 2021

The Senate has begun to debate the For the People Act. This crucial piece of legislation would make it easier to vote, ban partisan gerrymandering and stop voter suppression. At stake is the election of a Congress that reflects America or a Congress that reflects extremism. This is truly a battle for the survival of democracy in America. We have to win this!

That link is to the Brennan Center discussion. Here’s another take on the same battle by Demos and its Inclusive Democracy Agenda.

Clean Water is crucial

March 25, 2021

A letter from One of the go-to organizations of some of my friends who specialize in what’s happened to the environment is the Climate Reality Project that Al Gore founded to continue the battle for the climate. I just got a letter from them that reads “everyone deserves access to clean, safe water at rates they can afford – full stop. Yet since the 1970s, the US federal government has dramatically reduced its funding for water infrastructure upgrades, putting the health of entire communities in danger.” And they point to the results: “More boil advisories, leaky lead pipes, raw sewage, water shortages, and other water-related issues … across the country from Flint to Jackson….” There’s a lot more information on their blog. I encourage people to look.


March 20, 2021

The New York Civil Liberties Union and tghe Capital District Coalition Against Islamophobia are both promoting the Stop Asian Hate Rally. Here is the description from the Capital District Coalition Against Islamophobia <capital-district-coalition-against-islamophobia@googlegroups.com>:


On Monday, March 22, 2021 at 5:15 PM in Albany’s Academy Park across from the New York State Capitol, members of the Asian American Pacific Islander community of the Capital District and their allies will come together to:

-Remember and honor victims of Asian hate

-Condemn the rising tide of anti-Asian violence and hate.

-Offer solutions and raise awareness of what we all can do to STOP ASIAN HATE

PLACE: ACADEMY PARK, corner of Eagle and Central Avenue, Albany, NY


TIME: 5:15 PM


Foreign Affairs – Dealing with Iran

March 15, 2021

The only thing wrong with democracy in America is that some people don’t agree with me! Seriously, I have my blind spots too.  But it’s also true that the public finds it difficult to hold different things in mind at once. That’s one of the hardest things about playing the piano – one has to control two hands doing different things at the same time. Coordination is hard and hard for the brain, although over time we learn to do it for the things that we have to do every day. When it gets to law or foreign affairs, coordination is a constant issue, enough to give one a headache. But good law and good policy depend on it.

Lots of Americans have a very poor opinion of Iran. But which one? I know lots of Persians who are truly lovely. Whether you realize it or not, you’ve started to hear many Persian-Americans as newscasters or actors in Hollywood and elsewhere. I must say that a complement from Persians is a thing of beauty. I’m sure I would have had a much happier wife if I had been able to learn their skill at complements. Their friendship is strong and permanent.

So perhaps what people mean is their attitude toward the Persian government – but even that isn’t simple. Should they hate America because they despise Trump? Or love America because of their hard-earned respect for Obama – no pushover for them but he understood the lines they could not cross and sought to build trust that could strengthen over time, were it not for the recently defeated White House occupant. America isn’t any simpler for them than Iran is for us.

People, most people, react with great hostility to threats. We do. They do. Threats make us harden our position and try to force adversaries to back down. In that respect they are just like us.

For seven decades America tried to build foreign policy based on law – law that we as well as others would have to abide. As the delegates to the Constitutional Convention repeatedly commented, when one breaks a contract, the other is freed from obligations under it. Trump kept screaming that Iran was in breach. But they adhered to the contract long after we had pulled out, until they finally grew exasperated with us. And once we pulled out, they no longer had any obligations to us. So who was in violation of legal obligations and what does that mean, not only for Iran, but for the rest of the world?

Many people have been trying to get across to us that the rest of the world no longer trusts us. Sure, one can point to things that didn’t go our way over those seventy years, but if you take a closer look, we were calling the shots, and got lots of things we couldn’t have gotten otherwise, as long as we were trustworthy.

Biden apparently believes that his first foreign policy job is to pander to the people of America even though they’ve got it terribly wrong. Only if he can regain for America the trust others once had in us, can we move forward on the big issues that will take international cooperation. It won’t be by shouting. It won’t be by threatening. It won’t be by pulling out of our obligations and trying to blame the other guy. Honoring our commitment to Iran in the nuclear deal that we and several other nations made with Iran is no shame. It’s an important step in a constructive foreign policy.

— This commentary was scheduled for broadcast on the WAMC Northeast Report, on March 16, 2021.

Government Work

March 15, 2021

Democrats pile onto misbehaving Democratic officials, as they seem to be in New York. Republican response to Republican misbehavior seems to be, “Go get those suckers; do it some more,” as in the last four years in Washington. When chief executives start thinking of themselves as untouchable alpha-males they need to be pushed out. But there’s a larger story.

Discussing the flawed roll-out of the Covid vaccine at a community event, someone remarked “That’s government.” I broke in to say that all of us here know people who work for government, some among the finest people we know. Many of my best former students work for government because that’s where the most socially valuable and interesting jobs are. One of my first neighbors in Albany directed the environmental bureau of the Attorney General’s office. We often talked about their effort to protect New Yorkers from the toxic waste in the infamous Love Canal, and generally to protect us all from destructive pollution. Few lawyers find more fulfilling work. Jim shuttled between offices in New York City and Albany to get his work done, and hired some of the best of my former students. Yes, that’s government too.

Complaints about “government” are mostly about government efforts to meet our conflicting demands. Satisfying us is tough and everybody’s a critic. Public servants don’t ask for recognition. In fact, when we discussed it, Rex Smith wrote me that many public servants are very averse to sticking their heads out above their colleagues. It’s enough for them to do their work well.

Along with the Covid heroes, those working inside the government also deserve to be celebrated: government lawyers who put dangerous people away, and those who try to prevent government from putting innocent people away; water, sewer and sanitation workers who do some of the dirtiest work in the area to keep our neighborhoods clean and healthy; health department workers who keep filth and toxins out of our food, and many more. My hat’s off to government workers who spent hours on the phone reading us what government lawyers asked them to before we signed up for vaccines. Yes, their bosses could have set that up better, but, with headwinds from every direction, thanks to them too for getting that job done.

We argue over choices between a clean, healthy environment or letting business ignore the damage they do; and choices between livable wages or allowing excess profits. Despite well-publicized exceptions, the difficulties come from our competing desires. Let’s have some sympathy, and admiration, for the people who try to give us what we say we want.

Let me suggest that news media devote a section to government work and workers whose jobs are well done. Good public service is a secret much too well-kept. The many fine public servants devoted to serving us makes it even more important to get miscreants out of their way and out of office, so they can do their jobs honestly, thoroughly and fearlessly. Cuomo’s misbehavior hurts all the more because it clouds our memory of all the good work done by many people dedicated to real science and public health. We need to find more ways to recognize the good work done in many government offices so that we don’t completely miss the importance of government work.

This commentary was rescheduled for broadcast on the WAMC Northeast Report, on March 23, 2021.

What We’re Worth to Each Other

March 5, 2021

In this time of crisis, when many are sick, grieving or out of work, and the new Administration is trying to address their needs, I’ll resist the politics, and just talk about what we’re worth. Some people define our value by whatever it would cost to replace us at work. That’s the capitalist answer. Whatever someone else will do the work for, that’s what you should get. When people complain about having to help or support others, they seem to be saying people are worth whatever they get, and no more.

That of course is the cheapest way to value people. But there are other ways to measure people’s worth. Economists describe producer’s surplus as the value we create above and beyond our wages – including what our employers keep. That spread, of course, is why employers fight unions – they know our work is much more valuable to them than what they pay us. They pocket the difference to increase their own wealth. To some extent that’s necessary and fair. But the difference gets very large with companies who skim a lot of the value of what workers do and turn the benefit over to the folks on top.

The value of work to society is greater even than the economic benefit. Think of the essential workers, the aids, helpers and drivers who make large differences in our lives. Most of us can’t afford the full value of the difference they make in our lives far above what they ask for or we could pay them.

There’s no clear answer to how much is fair. But the problem with our economic system is that it is stacked against workers, paying people the least possible for their labor. That’s not fair either.

The Supreme Court, a century ago, recognized that people could become so desperate that they’d sell themselves into slavery. The Court responded that the Thirteenth Amendment prohibits such deals. The argument about a living wage is similar – is it fair to take so much from people that they can’t live on what’s left?

In many religious traditions, every child goes through some rite of passage indicating that they’ve reached a respectable mastery of the traditions – whether it’s confirmation, b’nai mitzvot or something else. Since virtually all the kids can do it, a capitalist could say it isn’t very valuable. But we heap praise and presents on the kids. They must have done something of value. The value of what they did isn’t defined by the price one could pay someone else to do it in a competitive market. The respect and appreciation we owe people isn’t the same as what they’re paid.

That leads me to be skeptical of claims that people are only entitled to what they can earn or can pay for. It heaps disrespect on people who deserve our respect and appreciation. I feel morally committed to a safety net and respect for the value of the lives we can make tolerable. Programs to help others don’t leave me feeling cheated. They leave me feeling enriched. As Tom Paxton sings, “If the poor don’t matter, then neither do I.” There’s value in people, value in caring, and it goes both ways.

I hope you’ll think about what people are really worth when we think about bills to provide relief and a livable wage to people who can’t provide for themselves during this pandemic and in more normal times as well. It’s important to add that those who think they owe nothing to nobody need only open their eyes.

— This commentary was scheduled for broadcast on WAMC Northeast Report, on March 9, 2021.

<span>%d</span> bloggers like this: