No Time for Moderates

May 27, 2019

We’re suffering a worldwide attack on tolerance, the brotherhood and sisterhood of all peoples, and the principles of democracy and equality that make it possible to share the country and much of the globe in peace. The results, from Brexit to White Nationalism, the resurgence of Nazism in Europe, intolerance in India and China and ethnic warfare over the scraps of economic failure endanger us all. America, founded on tolerance, equality and democracy, should be leading the world out of this dangerous morass instead of smoothing the path to hell.

Commentators have long seen and feared the separation of national politics from the needs of the great mass of working people. Both national parties partook of that separation. Republicans revere Reagan but he crippled the unions, the organizations of working men and women. And claiming that government is the problem, not the solution, Reagan crippled efforts to address their problems. Democrats followed national economic trends without paying enough attention to the dislocations among working people. That combination made white working people feel left out, instead of uniting us in pursuit of a better world for everybody.

That’s recent history. Much further back, Alexis de Tocqueville, famous French nobleman, toured the U.S. in the 1830s and had the genius to see far into this country’s future. Tocqueville told us that democracy required widespread economic well-being.  The very first paragraph of the U.S. Constitution talks about the “general welfare” but many poo-poo it as merely precatory language, not authorizing government to take care of the people. Those who poo-poo that language think the Constitution is merely about freedom from government rather than the creation of a government capable of providing for the people. Their misreading of history is perverse and dangerous.

Seymour Martin Lipset, one of the twentieth century’s great political scientists, pointed to the world-wide connection between democracy and economic welfare. Germany, which had been a great economic power, lost its illustrious and democratic Weimar Constitution after going through economic hell between the world wars.

President Franklin Delano Roosevelt told America that he was saving capitalism by protecting the great mass of Americans from the ways capitalism went awry. The big shots of industry couldn’t understand that their behavior wasn’t sacrosanct. They couldn’t understand that capitalism too has to operate by standards of ethics and principles of sharing. Roosevelt was the architect of American economic success for the next half century precisely because he put in place the rules by which it could operate for the benefit of the entire country, not merely the captains of industry and finance. We have forgotten and dishonored Roosevelt’s legacy of making government serve the people. He rescued this country from the Great Depression, “promote[d] the general Welfare,” as the Constitution provided, and set the country on a sound economic keel, a legacy that would honor any leader.  Fools now sneeze at his accomplishment so they can promote something new – poverty for all.

There’ve been plenty of warnings. Now we have a chance. It’s not enough to beat Trump. We need a victory for the principle that everyone counts and everyone needs to be protected. It doesn’t matter whether it’s called “socialism” or something else. The idea that it’s a bad idea to take care of each other has got to go – permanently – and all the conservative nonsense about the damage of helping each other. Either we care for each other or we will suffer a war of all against all regardless of what you call it – fascism, communism, totalitarianism – the results won’t be good for anyone except the oligarchs.

Forget “moderate” Democrats. If “radical” describes the philosophy of taking care of each other, we need it NOW. Bless all the people with the decency and humanity to care about their neighbors, fellow citizens and fellow human beings. The blessed are those who care.

– This commentary was broadcast on WAMC Northeast Report, May 28, 2019.


For Elizabeth Warren

May 21, 2019

We’ve all been told the story of John Smith and Pocahontas, and pass it on with pride and pleasure. Although the actual events probably differed in some respects from the story we’re told, it speaks well of us that we remember her bravery and the love and marriage of Pocahontas and John Rolfe. They had a son, Thomas, who was brought up by English relatives after Pocahontas died there. I’ve often wondered how they described his heritage and hope they remembered his Native American mother with pride and pleasure. Children were born from similar marriages through much of the American frontier. I hope their descendants think of their native ancestors with the same warmth. In that vein, I was happy to discover that Senator Warren’s family took pleasure in knowing that a native union was blended into their family story, and that Senator Warren grew up thinking about it with pleasure. Some have pummeled her for it, but I think her attitude says more about her kindness and decency.

I met Warren years ago when she came to Albany Law to give a pair of talks, one over lunch to the faculty and another to the wider law school community. Many of us got to talk with her informally. She was fighting changes to the bankruptcy code that would make it even harsher and crueler.

I will never forget the way that she showed us all how legal rules were compounding the damage to people who had just suffered unforeseen events, like an illness. She showed us with great clarity that they weren’t deadbeats. They’d had a piece of bad luck and the rules made things worse, not better. Many women filed for bankruptcy after a divorce. Many tried to go to work, finish schooling or start a business but were squeezed too tightly to make it work. The bankruptcy code was supposed to give people a second chance. But the changes being proposed, and passed about a decade later, made it even harder for people, other than the president and his friends, to get that second chance.

The woman I met that day was a warm human being, who cared about people with ordinary incomes. That’s what I want to see in a representative for any office – someone whose heart is in the right place, whose head gives them the tools to straighten things out, and who is prepared to devote her energy toward getting things right. It couldn’t be clearer to me that that’s Elizabeth Warren.

On the national stage since I had the pleasure of meeting and breaking bread with her, she has fought for rules that would protect the great majority of us, and she has fought against those who have raped the rest of us of our savings, our homes and our livelihoods. Some people, with the resources to take the rest of us for a ride, opposed letting her run anything in Washington, but that only confirmed my judgment that she is the right person to lead us to a stronger, better, more just, America. I would feel blessed and honored to have Elizabeth Warren as my president.

Let me add that her being a woman has never made any difference to me. I’ve worked for men and women, people of color and people whose skin looks like mine. I’ve worked for wonderful, memorable people in every category. Elizabeth Warren is one of the wonderful ones.

Incidentally, I didn’t realize it at the time, but her daughter and I both gave talks a year or so ago at a meeting run by an organization her daughter heads. Senator Warren obviously passed her values and intelligence on to the next generation. I also happen to know Senator Warren’s husband, Bruce Mann. He’s been active in a professional association of legal historians of which I am also a member. Bruce and I have chatted occasionally. In this case, I should make it clear, and whatever your feelings about puns, I’m not only rooting for Elizabeth Warren to become our president, I’m also rooting for her husband, Bruce Mann, to be first Mann in the White House.

— This commentary was broadcast on WAMC Northeast Report, May 21, 2019.

 


Trump Committed High Crimes

May 20, 2019

Walter Dellinger, former head of the Office of Legal Counsel, in a piece that deserves a lot more circulation, provides the strongest and clearest statement of the Mueller Report, saying:

“The report lays out in detail specific acts of obstruction by the president, as well as the extensive evidence that backs up those claims. More than 900 former federal prosecutors (including Republicans and Democrats) have publicly declared that, if anyone else had committed those same acts, they would be under indictment.” He argues that “we should have been shouting from the rooftops: ‘The president is failing to defend democracy from attack’; ‘The president’s campaign welcomed and encouraged Russia’s efforts to change our election results’; ‘The president obstructed justice’; and ‘The president daily undermined the rule of law.’”

It’s well worth reading and passing on:

Democrats’ obsession with redaction is obscuring the obvious: Trump committed high crimes

 

 


Iran and the US

May 14, 2019

I can’t update the news from the Persian Gulf except to express my skepticism. I intended to go behind the news to look at Iranian and American views of each other. I still think that’s useful.

Problems between our countries are vestiges of nineteenth and early twentieth century colonialism which gave the west control over Iranian oil fields. In the 1950s, Prime Minister Mossadegh was unwilling to continue that relationship. This country replaced him with the Shah largely over oil, creating a relationship that hurt Iranian pride..

Iran also shared a border with the former Soviet Union and there had been military conflict between them. Mossadegh, sought peaceful coexistence with the U.S.S.R. Although his behavior was similar to other unaligned leaders like Tito in Yugoslavia, this country refused to show him the same respect.

After its Revolution, with its present combination of an elected legislature and clerical Guardian Council, the U.S. spent decades trying to isolate Iran, despite Iranian overtures to negotiate all our differences. Needing alliances outside our sphere of influence, Iran maintained alliances with conservative Middle Eastern religions. Of course that makes them seem even worse to us.

Obama’s willingness to show respect for Iranian sovereignty and not treat them like an American client, was crucial to his ability to reach a deal over nuclear fuel. Obama believed a fundamental mistake of American Middle Eastern policy has been the belief that we could and should control it for purposes that have had little to do with American security.

But this Administration believes it gets support at home by flexing its muscles along with threats and insults. As Reese Erlich put it, “To assert U.S. hegemony in the Middle East, Washington must have a truly evil enemy to combat. Mad mullahs with nukes fit the bill.”[i] The story they’ve been telling looks as far from reality as the Bush-Cheney story of weapons of mass destruction in Iraq.

What does Trump’s America look like to Iran?

Despite our warships, Iran has good reason to think we’re weak. American alliances are in shambles and US trading preeminence is over. One-on-one trade deals maximize US power over weak countries but it sours relations with others. Our sanctions against Iran foul the economies of countries that used to be our friends. Equally important, another war in the Middle East would weaken us in parts of the world, like the Far East, where our interests are truly being challenged.

For our traditional European allies, Trump’s bizarre affection for dictators, is a turn off and a warning sign. And it encourages the militarization of countries like Turkey which used to be part of the peaceful, human rights respecting, democratic countries of NATO and the E.U.

So across the globe, including hotspots, like Turkey, North Korea, and Iran, it now seems that American agreements can’t be trusted. That gives them a reason to seek, not avoid, nuclear arms, because without them, they would be as vulnerable to American conquest as Iraq was. It shouldn’t be surprising, then, that Iran threatened to enrich their nuclear materials beyond what they need for peaceful uses. That, of course, is counter-productive for America, although they are a lot further from building a weapon than this Administration would have you believe.

And it must seem to Muslims that we are supporting 21st century crusades through US threats, client dictators and carte blanche to Israel.

As for breaking news from the Gulf, we have learned from Vietnam and Iraq, that our government does not always tell us the truth. Sadly, this president is no paragon of honesty. And after the Kashoggi affair, it is clear that Saudi Arabia and its allies are less than trustworthy. So I believe the best analogy for what’s going on, is what went on, in Iraq.

 – This commentary was broadcast on WAMC Northeast Report, May 14, 2019


[i] The Iran Agenda Today, 45 (2019).


Vaccines

May 7, 2019

There’s been a lot of controversy about vaccines lately, so let’s talk about it. Lawyers put a lot of effort into dealing with medicine, science and history. You can’t fight about rights without being able to talk about the consequences. So let’s talk about the science of vaccines – in 1776!

That’s right. In the American Revolution, General George Washington quarantined his soldiers and gave them cow pox before sending them to the battle lines. It turned out that milk maids in Europe and elsewhere didn’t get smallpox. The practice was widely used in Asia and Africa. Lady Mary Wortley Montague, the wife of a British Ambassador to Turkey, is credited with introducing it to England in the early 18th century. Doctor Edward Jenner is credited with investigating, improving and publicizing it in the late eighteenth century.

Washington’s revolutionary soldiers did get sick but with a much less dangerous form of the disease. If you don’t know what smallpox is like you don’t want to know. The closest modern comparison that I can think of and that has been in the news is ebola. It’s ugly, painful and deadly. Washington protected his soldiers, and their resistance to smallpox helped him stave off the British.

Skip ahead a century and a half. The method of inoculation changed somewhat but I had the scar to prove it for decades. Vaccines were developed for other diseases. Those of us old enough to remember the world of the early 1950s will remember the little cardboard piggybanks of the March of Dimes in almost every store. The March of Dimes collected to wage a battle with polio. Polio terrified my generation. I remember scenes of children in what were called iron lungs – steel barrels with a hole for the children’s heads. That was a nightmare for me but one that lasted all day. I couldn’t stand the idea that I might have to be cooped up that way 24 hours a day. My dad taught in a Brooklyn high school and we packed the car on the last day of school and drove straight out of New York City to some place up state. We imagined that we would be safer there than in the city but in fact we knew someone on the shores of Lake Champlain, quite distant from New York City, who had come down with polio.

When Jonas Salk came up with the first polio vaccine, all of America seemed to breath a collective sigh of relief. The Sabin vaccine came out shortly after and it was better. But either vaccine decimated your chances of being paralyzed by polio. Most vaccines for other diseases became available after my wife and I became adults. But vaccines are a major reason for the decline of child mortality. Parents no longer expect to bury some of their children.

I eventually got both polio vaccines because the Peace Corps administered it to volunteers before sending us abroad. Actually, they inoculated us against everything they could. However you reacted to the needle prick, you appreciated that the Peace Corps was doing its best to protect us. They also assigned a U.S. Public Health doctor to take care of us: Dr. Robert Carey later spent sixteen years as dean of the medical school at the University of Virginia and he’s been a close friend ever since. The Peace Corps took care of us. It didn’t want any of us coming home in a coffin or a body bag.

Thank you, Dr. Salk and Dr. Sabin, and all those who have worked to develop the vaccines that have protected us; thank you America and thank you to the Peace Corps for seeing that we got them. I appreciated all the vaccines I’ve had.

— This commentary was recorded for broadcast on WAMC Northeast Report, May 7, 2019.


The Census Case

May 7, 2019

Too much is happening in this world, but the census deserves discussion because it affects how we handle everything. New York Solicitor General Barbara Underwood argued in the U.S. Supreme Court that the coming census will undercount the population and do significant damage to the people of New York and elsewhere.

I sued the Census Bureau over the 1970 census and lost. So few people had sued the Bureau, that loss made me an expert. A town in Indiana gave me a first-class plane ticket to help them at trial on the same issue. Who else were they going to get?

In court, on the case I had brought, the federal judge told me I’d have to have an overwhelming case to get relief against the Census Bureau. The Justice Department Attorney in Washington, D.C., responded, under his breath, that indeed I did. I was a bit more humble.

The problem was that we were attempting to predict the effect of the Bureau’s shift from exclusive reliance on an army of census takers knocking on doors to a mailed census form for people to fill in. Although I was suing in Washington, I was working for the St. Louis Legal Aid Society. We were convinced the changes would undercount our clients, so that many of the programs they relied on would be underfunded. As Chief Justice Burger explained in another case, a public education was largely unavailable to many of our clients. Without that, the census form would be difficult to fill in, if they filled it in at all.

The Census Bureau had studied the issue, and without getting into the weeds, I knew the studies they relied on, and the strengths and weaknesses of those studies. By the time they got me to the trial in Indiana, I realized the Indiana team did not have a witness that could deal with the issue.

This time the Bureau is asking people to file their census forms online. And they are asking about citizenship. The citizenship issue runs into the words of the Constitution. Article I, section 2, written in 1787, says the people should be counted “according to their respective Numbers.” It doesn’t refer to citizens or residents. Just Numbers. The reason of course was slavery. Slaves weren’t treated as citizens. But white southerners wanted the value of their votes increased by what the Constitution called “three fifths of all other persons,” i.e., slaves. Slaves had to be counted. So, the language and the original meaning are clear that everybody, citizen and noncitizen alike had to be counted.

In this case, the Bureau opposed adding a citizenship question because it would degrade the accuracy of the population count. Their view was based on a number of studies. But Secretary Ross overruled the Bureau without the benefit of any research and in the teeth of the experts’ views.

Regardless, several conservative judges argued that what the Secretary wanted to do was common sense. Science, statistics, data, who needs it? They treated science as if it just obfuscates reality much like those people who deny the science behind climate change, or the medical science behind vaccinations, or the biology behind changes in species over time. Science is taking a beating, but we will bear the pain. And since the census is about the health of American democracy, self-government will take the licking.

Population trends don’t favor the candidates preferred by five members of the Supreme Court so they’d rather throw the lawsuits out than allow the census to reflect the changes. Chief Justice Roberts said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” just dedicated judges. Don’t hold your breath.

— This commentary was broadcast on WAMC Northeast Report, April 30, 2019.

 


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