Why Neither Party Can Back Down on Garland

April 12, 2016

Why is blocking the Garland nomination to the Supreme Court so important to them that most Republicans won’t even meet with him let alone agree to hold a vote? Many probably think it is about gay rights and abortion. But there is much more at stake for both parties.

After the Civil War, a very different Republican Party was anxious to secure voting rights for African-Americans. They explicitly addressed the voting rights of the former slaves in both the Fourteenth and Fifteenth Amendments and addressed it by implication in several other clauses as well. Those Republicans, committed to freedom and equality, understood that if the states of the former Confederacy could exclude African-Americans from voting, the former secessionists could retake southern government. Even more important, southern control of the House of Representatives would be strengthened, because the former slaves would count as full and equal human beings in the census and therefore in the apportionment of seats in the House. If that greater southern representation could be controlled by the white secessionists without Black votes to contend with, the former secessionists would control Congress.

Republicans have now switched positions. They still want to control Congress by controlling who can vote, but now by excluding everyone except white voters and undercounting everyone except Republicans. The Court has given them the power to do that. First, the Court chose George Bush for President, stopping the count of the actual votes in Florida. It refused to subject gerrymandering to any legal standard, even though there is now a very precise formula defining the extent of gerrymandering. It has taken the lid off every measure that descendants of the former Confederacy can impose to prevent African-Americans from voting, opening the polls only when it is difficult for them to get there, moving polling places to make them harder to reach, and requiring documents for registration that are costly in both time and money to obtain. That’s the dictator’s game where the officials choose the voters instead of the voters choosing the officials. It shreds democracy. It seems it is all the Republicans have left. And if choosing their voters turns out to be insufficient, the Court has unleashed the flood of corporate treasuries on politics and undercut labor’s ability to survive as a counterweight.

Choosing their voters, and controlling political money to favor Republicans are their biggest motives for wanting to control the Court – it protects their seats and their control of states and Congress. But there are other motives. The Court has shredded the protections of ordinary citizens in product liability, fraud and breach of contract cases. It has shredded the responsibility of Republicans’ corporate friends in antitrust liability and responsibility for securities fraud. The Court has become the major enabler of corruption, a giant kickback to friends of Republicans.

If one adds Republican preference for the conservative justices’ attack on abortion and gay rights, and their defense of school segregation, the Court has defined virtually the entire Republican agenda, its social agenda, its attempt to subordinate democracy to their dominance, and its cozy relationship with corporate America. It gives the rest of us very strong reasons to stop them and to get the Court back in support of democratic government, especially taking back the Court’s blessing for legally converting a vocal minority into national rulers. It’s time to stop them in the name of democracy.

— This commentary was broadcast on WAMC Northeast Report, April 12, 2016.

 

The Death of Dontay Ivy and “Walking While Black”

March 1, 2016

I’ve been reading District Attorney David Soares’ letter to Mayor Sheehan on the death of Donald (Dontay) Ivy while in police custody. I’d like to discuss some of what came out of the D.A.’s investigation.

Donald Ivy went out to an ATM, to collect disability benefits, intending to come home. David Soares describes Dontay’s first encounter with the police that night. Two officers [quote] “approached … [Dontay Ivy] sitting on the steps of a property in the South End. The officers approached … in an attempt to learn if he was trespassing.” [close quote] Satisfied that he was’t, they left. Have you ever rested on the steps of a building? Did you think you were trespassing? You weren’t and he wasn’t unless the owner or tenant conveyed an objection or he had gone through a lock, door, fence or barricade. For the police, the mere fact that an African-American man was sitting on some steps was enough to check on him.

A little later that evening, Dontay was walking on Lark Street. Soares noted that it was 26 degrees according to “historical weather data.” But the officers’ became concerned because he was wearing a winter coat, what they called “a ‘puffer’ coat,” [close quote] was [quote] “walking heavily on his left arm” [close quote] and [quote] “appeared to be bunching up his left hand into his sleeve.” [close quote] I’ve done that, sometimes to shelter something from the weather, sometimes because one hand was colder, because of the way I’d been using my hands or had somehow restricted circulation in one hand.

According to District Attorney Soares, one officer said [quote] “the way he was walking didn’t seem right.” [close quote] I don’t know why – a crick, a cramp, or a little arthritis. I can imagine someone coming up to me and asking if I was OK. But the officers asked to see Dontay’s hands and wanted to know where he was going. I can’t relate to that from my experience. Can you?

Apparently because Dontay had on a loose fitting winter coat, whatever he was able to afford on his disability check, one of the officers [quote] “was under the impression that Mr. Ivy might have had a weapon, or possibly drugs.” [close quote] That inference was’t backed up by anything found on Mr. Ivy. It’s an inference that could easily be drawn about most of us sometimes, but I suspect few of us have had police make that kind of inference about us – certainly not if we have white skin and decent clothes.

The report continues that one officer [quote] “noticed what appeared to be a tied-off plastic baggy of the sort used to package drugs on the ground, about ten to twelve feet away from Mr. Ivy, near where he had been walking.” [close quote] If I had to explain every plastic bag found near me when I’m out for a walk, neither the police nor I would have time for anything else. And plastic bag stories are so common in cases where police are trying to justify a search that everyone in the criminal process has become enormously skeptical. It later turned out that the bag was empty.

After they questioned him further, they decided to pat Dontay down. According to the police, he consented, but reacted to being touched by pulling his hands down. Soares’ letter says, “From interviews with members of the Ivy family, we are led to believe that, as part of his mental illness, Mr. Ivy did not like to be touched.” [close quote] Mr. Ivy was under medication for his illness. Let me add that I have learned, from experience and from some direct remarks, that many African-Americans do not like to be touched even in ways that are completely unexceptional in the U.S., including a tap on the shoulder which got me a withering look from a speaker at an event of an organization of which I was a board member.

Obviously things kept getting worse until, as David Soares summarized the findings of the medical examiner, [quote] “Mr. Ivy suffered from an underlying condition that made him particularly susceptible to a heart attack brought on by the stress of the incident with the police.” [close quote] By the time of his death, that stress included the officers attempt to handcuff him, Ivy’s attempt to flee, a chase, subduing Ivy with handcuffs, leg restraints, a police baton and several taser strikes.

Clearly before the stress killed him, the stress led Ivy to do some things that were unwise, that I as an attorney would have advised against had I been able to reach him. But people doing stupid things under stress is a fact of being human. Interestingly, at one point, one of the officers told Dontay they were going to detain him because he couldn’t follow the officer’s instructions to keep his hands up, adding [quote] “You’re making me a bit nervous.” [close quote]

It’s striking how ordinary all this is – Dontay’s behavior before the police stopped him; his obvious fear of the police and what they were doing is also ordinary, especially in the Black community; the officers’ fear that Ivy had a gun, even though based on a string of inferences from very ordinary behavior, and fear about a possession which, under recent U.S. Supreme Court cases, would arguably have been within his rights.

But from all those very ordinary facts, a man is dead and the D.A., the grand jury, the police chief and the Mayor all apparently find no one blameworthy. What it means is that for [quote] “walking while Black,” [close quote] a man needs the savvy of a criminal defense lawyer and the courage to deal with stressful situations by focusing on how scared the police are because of the color of his skin.

— A shorter version of this commentary was broadcast on WAMC Northeast Report, March 1, 2016.


This campaign makes me nostalgic for the draft

September 15, 2015

This campaign makes me nostalgic for the draft.

The Republican candidates have been telling us who they want to keep out, and whom they don’t like or wouldn’t lift a finger for – Mexicans, Iran, Muslims, the poor, women, peaceniks. And they make it pretty obvious whom they do like – whites, “real men,” cops, soldiers, guns, the U.S., especially the U.S. before any of us were born, and Christians. It’s all stereotypes, of course. No group of people is all good or all bad – not even conservatives, a big stretch for me. There are always gradations – people need to be judged on their behavior. But that’s too much work. Simplification is so much easier.

Let’s talk about something else they don’t like – democracy. All their blather about the free market and government is little more than an attack on democracy. In fact polls reveal that, on average, conservatives are typically less supportive of the freedoms in the Bill of Rights – except the freedom to carry guns so that, if what they define as the need arrives, you can blow whomever away. Heaven forbid we should have to live together. I glory in walking out of Penn Station in New York – it seems like the whole world is right there and managing to get along; how wonderful in this increasingly contentious world.

Oh on the subject of New York City, that’s a stereotype right there – for much of America New York City is Sodom and Gomorrah. Never mind that the City is actually composed of Americans from all over the country – their own relatives, friends and classmates – as well as a major first stop for immigrants, the same immigrant streams that composed the rest of the country. No, New York is heathen. I remember stopping downstairs for a haircut in a building where I had a temporary apartment in Ohio. The barber was a woman and as we chatted she told me that she was surprised that New Yorkers actually tried to help each other in the days after 9/11. Really – did she think we were coyotes?

It makes me nostalgic too – for the draft! There was actually a time when Americans from all over had to meet, interact, make friends, and did. They introduced each other to their eventual brides, formed business partnerships, learned to appreciate the best in each other’s backgrounds. The draft was truly the incubus of democracy. Theodore Roosevelt proclaimed “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[i] Got that right.

Actually the military has been working on that problem since the country was formed. Contrary to what many people think, Americans at the founding spoke many languages and have continued to speak many languages. The military struggled with whipping those disparate forces into a unified fighting team. They tried separate local units and units recruited by leaders like Roosevelt’s “Rough Riders” but they tossed all that aside and put people into those military tents without regard to their origins.

The racial divide forced the military to think again about the problem. It turned out that mixed race units in World War II came back positive about the possibilities of integration. But Vietnam was hard, a stalemate in the swamps in the middle of turmoil back home. But the military responded by making it a part of every officer’s responsibility not only to achieve racial peace and cooperation, but to make sure that soldiers of all races developed appropriately, got training and took on responsibilities leading to promotions.

As a youth I feared the draft; I knew my own physical weaknesses. For me the Peace Corps was a good choice, one that helped me develop as a human being. And there were problems with the way the draft was handled. But I miss it nonetheless. Truly national service is a very good idea for a democratic country.

— This commentary was broadcast on WAMC Northeast Report, September 15, 2015.

[i] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America From the Colonial Era to the Present 302 (New York: Free Press, Peter Karsten, ed., rev. ed. 1986).


Grateful on the Fourth of July

July 7, 2015

As we celebrated the Fourth of July I found myself thinking back to a trip my wife and I made to visit friends on Long Island by way of the Ferry. We knew that there was a ceremony taking place at my alma mater, Yale Law School, for the swearing in of Judge Calabresi to take his seat on the federal Court of Appeals. Justice Souter was coming to perform the ceremony. And one of my classmates was already on the Court and would be there. So it would be a great party.

Judge Calabresi had been one of my teachers. His appointment to the Court was the occasion for his resigning as Dean of the Law School, a position he’d held for a decade. When it was his turn to speak, Judge Calabresi described how he and his family had left Italy in the early days of World War II when he was young. Calabresi is one of the most gifted and eloquent speakers I know and he described how America had been ready to give people like him – an immigrant and a Jew – an opportunity when they arrived. And he spoke about how he hoped to continue that tradition as a Judge, to be able to extend the benefits America had to offer to others, whether new to our shores or people we have been calling minorities.

My father and I were lucky to be born here but my mother and my grandparents were not. Looking around, the world could only impress me with the great good fortune of being born an American, in an age when America was prepared to extend opportunities to people like me as it did for Calabresi. Looking around now, we have visions of genocide on several continents. The sanctuary of America is such a special blessing. It is no wonder that so many want to come.

Like Calabresi, though not nearly as eloquent a spokesman, I grew up wanting to share and extend those blessings. I grew up understanding instinctively the blessing of what before the feminist revolution we used to call brotherhood – I keep looking for a good successor to the warmth and humanity of that term. The understanding that we are all God’s children, that none of us is an island, that the world we want for ourselves depends on extending the benefits of that world to others, is our heritage, our glory and our security.

But those glories have been hard won and have never been secure. In our own generations we have struggled to extend the benefits of America to African-Americans, Hispanic-Americans, Asian-Americans and immigrants from the various struggles of Eastern Europe and the Middle East. After the Supreme Court declared segregation inherently unequal and unconstitutional, cities all over the country, tore down the areas where minorities lived, destroyed their communities, declared them unworthy of investment, and the federal government financed white, but not black movement to the new suburbs, a move that took the jobs too, leaving in their wake poor, dysfunctional communities where once decent, striving, and thankful communities had once stood.

America has been good to me. I do not take it for granted. I want to recognize, encourage and support decent people of all colors and languages. Truly they add to the strength and the glory of this country, and brotherhood adds to the security of all of us.

— This commentary was broadcast on WAMC Northeast Report, July 7, 2015.


Terry v. Ohio Deserves History’s Dustbin

April 14, 2015

Madison, Wisconsin; Ferguson, Missouri, Staten Island, New York; the list is endless and growing. And the tears keep flowing. Mostly young Black men deprived of their lives without benefit of any opportunity to defend themselves. They can’t defend themselves physically because that will be treated as a threat on the officers’ lives. They never get a chance to hire an attorney and defend themselves in court. It’s all over before it starts. More lives gone. More families grieving. That, apparently, has become American “justice.”

The Constitution says that we have the right to be free of “unreasonable searches and seizures … and no Warrants shall issue but upon probable cause ….” Probable cause became the standard for the constitutionality of an arrest or seizure of property. In 1968 the Warren Court decided a case known as Terry v. Ohio.[1] In that decision, the Warren Court said that the police do not have to have probable cause to stop and frisk someone. They said “reasonable suspicion” was enough. Although the Warren Court laid the foundations for a much more just society, making clear that segregation by race is “inherently unequal” and unconstitutional, mandating one person one vote and insisting on the enforcement of most of the Bill of Rights, Terry v. Ohio begat the reenactment of the racist patrols that kept the Blacks down on the farm throughout the post-Civil War segregated South, now expanded throughout the nation.

Terry v. Ohio is the source of the irritation of our Black fellow citizens by constant interruptions in their daily business, constant demands that they submit to searches, constant expressions not of cordial greetings from the police but constant demands that our Black fellow Americans obey and respect “the man.”

Terry v. Ohio is a source of many of the interactions between minorities and police that have gone disastrously wrong. It ramps up every exchange. There’s no “Hi, how are you?” It’s “turn around with your hands up” and from that moment everyone is on edge –minority individuals because they are out of control and don’t know what is going to happen to them, the cops because they are now ordering people around and expecting the worst. Indeed, when someone is ordered to put their hands up, any motion that doesn’t look right to the officer now looks dangerous. Everything ramps up. Adding insult to injury, we have statistics – nine-five percent of those stops are useless nonsense.

We would have less crime without Terry v. Ohio. There would be less anger without Terry v. Ohio. African-Americans would be less convinced that the world is determined to keep them down without the irritants enforced under Terry v. Ohio. We would be safer without Terry v. Ohio.

Indeed we were safer before Terry v. Ohio. In the world I grew up in, racial minorities were not a significant source of street crime. The world that so many of us, Black and white for different reasons, have learned to fear, is a post-Terry v. Ohio world.

There’s something else I’d do – I’d give the police a choice – no guns without full civilian accountability, fully empowered civilian review boards with the power to investigate, subpoena and see all documents and interview all witnesses without restrictions, without privileges, contractual barriers or anything else that prevents a full and impartial investigation. And I’d insist that cops turn on their cameras before they stop, seize, arrest or otherwise prevent us from doing our business without restraint.

— This commentary was broadcast on WAMC Northeast Report, April 14, 2015.

[1] 392 U.S. 1 (1968).


Alabama Legislative Black Caucus v. Alabama

March 31, 2015

In Alabama Legislative Black Caucus v. Alabama, decided a week ago on March 25, 2015, the Supreme Court reversed and sent back the lower court decision. The federal district court had thrown out a challenge to Alabama’s 2012 redistricting. That court held that the redistricting was not a racial gerrymander. The Supreme Court said the lower court used the wrong standard.

It’s important to understand what a decision like that does. The Supreme Court did not decide whether the redistricting violated the Constitution or not. It did not decide whether Alabama or the Black Caucus should win. It sent the case back to Alabama with instructions on how to figure out who should win.

The redistricting was accomplished by Alabama statute signed May 31, 2012, before the 2012 election. Plaintiffs filed a lawsuit later that year. The Court held a trial in mid-2013 and reached a decision throwing out the challenges in December of 2013. In 2014 the Supreme Court decided to hear the case. That Court now sends it back for more legal work.

This case was unusual for how quickly the case resulted in an opinion of the U.S. Supreme Court. Even so, after three years of legal proceedings the case is hardly over and could still take years before a resolution.

At the beginning of the proceedings, before any decision in the case, Alabama sought pre-clearance from Attorney General Eric Holder, under the portion of the Voting Rights Act which required Alabama to get the approval of the U.S. Attorney General for the electoral changes. That was called preclearance. In this case Attorney General Holder decided not to object to the districting. Only after Holder pre-cleared the statute did the judicial process get moving. But, while the case was in the lower court, the U.S. Supreme Court decided the pre-clearance provision of the Voting Rights Act was unconstitutional.[1]

Regardless of whether Alabama and Holder or the challengers had the better argument in this case, Holder pre-cleared the districting quickly but it took approximately three years for the courts to reach an inconclusive decision along the way toward ultimately deciding whether the districting is OK. The difference of course is several state and national elections. So, although it didn’t matter in this case, the time difference illustrates that one important result of the U.S. Supreme Court decision in 2013 that the pre-clearance provisions are unconstitutional, is that challengers may have to wait much longer for justice.

Secondly, this 2015 decision was written by Justice Breyer. He wrote for five members of the Court, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Committees often make poor writers. In this case, although Kennedy merely signed Breyer’s opinion, Breyer had to write an opinion to satisfy Justice Kennedy and consistent with Kennedy’s prior opinions. The result is a legal analysis that is hard to pin down and could be used creatively by either the majority or the dissenters in future cases. In that respect, Justice Scalia’s criticism is surely right – this decision won’t stand up.

That doesn’t mean Justice Scalia is right on the merits. It does mean the Justices have not understood the concept of gerrymandering, have not taken seriously enough the work of political scientists to analyze gerrymandering and put the concept on a much stronger, and precise foundation.[2] Law without science is often hollow.

— This commentary was broadcast on WAMC Northeast Report, March 31, 2015.

[1] Shelby County v. Holder, 570 U. S. ___ (2013).

[2] See Brief Of Amici Curiae Professors Gary King, et al, 2006 U.S. S. Ct. Briefs LEXIS 30, in League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006). See also Stephen E. Gottlieb, In ‘Vieth,’ Court Continues to Misunderstand Gerrymandering, N. Y. Law Journal, August 19, 2004, at 4.


Radicalization of Jihadi John

March 17, 2015

Identification of Jihadi John as a British citizen and college graduate has given rise to discussion about what radicalizes young people. There is no single answer but one aspect is to provide alternatives to the choice between deep frustration and dangerous radicalization.

Dreams of self-determination in much of the world have been shattered by dictators, corporate plunder and corruption of kleptocrats, too often with American backing. Dreams were shattered by the failure of pan-Arab and pan-African unity. Religious dreams were shattered by decades of repression of religious parties in the Middle East, jailing opposition leaders and attacking people over their faiths, and repeatedly denying them the fruits of victory at the polls. From the frustration of each failure came worse solutions. Our support and entanglement with repressive regimes have been a problem for us as well. And the damage is hard to undo – change creates instability and therefor danger.

The Humanitarian Law Project wanted to teach a Kurdish group how to bring their grievances to international bodies legally. Our government objected the group was on a terrorist list and teaching it peaceful ways to complain would only help it. The U.S. Supreme Court agreed and the lawyers backed off.[1]

We also have problems with radicalization. Some years ago, my research assistant and I discovered that high school history texts provided no models of citizen protest appropriate to a democracy. They systematically excluded dissent and disagreement in the name of patriotism. One of the books even pictured the Abolitionists before the Civil War as a lunatic fringe.

When people have no legitimate outlet, all hell can break out.

This country was extraordinarily lucky that the Civil Rights Movement had the leadership of wise and thoughtful people like Dr. Martin Luther King who took the path of nonviolence. They provided a path of peaceful protest, albeit protests that put the violence of the racist opposition on every TV set in the country. That reaction showed that everyone had been damaged by the repression of African-Americans, and that repression threatens democracy both because of what it does to the victors and to the losers. It showed that violence boomerangs in a democracy but does a great deal of harm – many paid with their lives for civil rights.

Many of us would just like other Americans to celebrate the virtues of America as it is. But chief among those virtues is the ability to go public with injustices and try to get them changed. That ability is also a powerful defense against home-grown violent movements. Unfortunately, it has been a well-kept secret in many schools. All too often, as in Ferguson, Missouri, we watch political leadership and police treating popular demonstrations as if they have no place in democracy, as if people are just supposed to keep their reactions to themselves.

The great Justice Louis Brandeis wrote, in 1927, that the Founders of our country

“knew that order cannot be secured merely through fear of punishment for its infraction; … that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones.”[2]

When people can’t or don’t understand how to get into that discussion, or are convinced they are powerless to participate, they are left with the hate that “menaces stable government.”

— This commentary was broadcast on WAMC Northeast Report, March 17, 2015.

[1] Humanitarian Law Project v. Holder, 561 U.S. 1 (2010).

[2] Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).


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