Thursday, July 26, 2012

Who vs. Whom

I suspect most of us learned the (prescriptive) rules in school. "Whom" is used when it is the object of a preposition or verb, otherwise "who" is used. There are some who say that "whom" is on its way to obsolescence. I don't go this far, because I can't believe that "To Who the Bell Tolls" will ever sound better than "To Whom the Bell Tolls", nor can I believe that "To Who It May Concern" will ever replace "To Whom It May Concern."

More complicated sentence construction requires more analysis, and therein lie the difficulities. Take this sentence: "Give it to whoever wants it." What is being said is, "Give it to the person who wants it." Hence, "whoever" is correct. "Whoever" is the subject of the clause "whoever wants it", so "who" is needed, even though the clause itself is the object of the preposition "to".

A Pat Buchanan column this week had a usage which is dubious. In a column discussing the possibility of Romney choosing Condi Rice as his running mate, he wrote,  "Asked whom she voted for in 2008, Rice reportedly said, ' was a special time for Americans.'"  The "whom" here just does not sound right. After all, I have often been asked "Who did you vote for?", but never "Whom did you vote for?" If Buchanan wanted to insist on using "whom" here, he could have moved the "for" and made it "Asked for whom she voted in 2008..."

Another example appears in a recent devotional guide. The sentence reads, "Whom else would it make more sense to follow?" If we do the usual rearranging to to see if who or whom is correct, we have "It would make more sense to follow whom." But then, what about the "else"? It can't be rearranged to include the else, so we know something is wrong with using "whom" here. This is yet another example of going overboard in an attempt to be technically correct, and in the process spoiling the whole sentence, not to mention the whole thought.

When dealing with the written word we usually have the luxury of thinking through the correct usage, and re-arranging the word order if necessary to make it sound right, which the above writers failed to do. Speaking orally and off-the-cuff is more problematic. Best rule-of-thumb here is to use "who" if one is not sure, since a misplaced "whom" is much more grating that a misplaced "who".

Wednesday, July 18, 2012

A Gut Check for the NCAA

Ohio State received severe sanctions from the NCAA because several of its football players received free tattoos. In light of that, what is the appropriate sanction for Penn State, which looked the other way for 14 years while young boys were being raped. More and more commentators are coming to the conclusion that the daeth penalty is the only reasonable sanction for Penn State's football program.

Joe Paterno tells us from the grave that this is not a football scandal. But the Freeh Report shows otherwise. The Report documents how the Penn State higher-ups wanted to report the allegations of sexual child abuse to the authorities, but Paterno talked them out of it. This demonstrates the unreasonable power of the football program, which reportedly brings in $50 million a year to the Penn State coffers. Similar allegations coming from any other university department would have been dealt with by reporting to authorities, but the football program could not afford a black mark.

An NCAA official was quoted in today's paper as saying there is no specific NCAA rule governing what happened. We will see if the NCAA has any guts at all.

The Life and Career of Pauline Kael

My love affair with the movies began in earnest during the 1967-68 school year, when I was in graduate school at Purdue University. I used to make the long walk from West Lafayette across the Wabash River into downtown Lafayette at least once a week, to take in a movie at one of the grand movie theaters located downtown, movie palaces which since have all but disappeared from the American scene.

I soon became aware of the great  movie reviews written by Pauline Kael in The New Yorker, collections of which were published in book form every few years. It seemed to me that Kael had always been around. How surprisng, then, to read a biography of Kael recently by Brian Kellow, documenting that, following her dropping out of Berkeley after the 1939 Fall semester, she knocked around for almost 30 years before finally landing a steady job at The New Yorker (even then it wasn't really "steady", as she alternated with another critic for 6 months at a time out of each year).

The memoirs I've read of other titans of 20th-century journalism, including Joseph Alsop, Bob Considine, Ring Lardner, James Reston, George Seldes, and William Shirer, all contain accounts of the writer getting out of college and immediately going to work in journalism, and then working his way up steadily to a position of national prominence. To read about Kael's 29-year struggle was thus a real eye-opener for me. It is a testament to sticking with doing something you love, even through hard times.

Wednesday, July 11, 2012

The Amistad Case: When the Executive and Judicial Branches Collide

I revisited the Amistad case recently by reading the book "Mutiny on the Amistad", by Howard Jones. Some new thoughts and insights resulted.

To recap briefly, the Amistad saga began in August of 1839 when a ship with 43 blacks aboard was found off the coast of Long Island. The blacks were taken into custody, and in a court hearing the following January it was determined that they were not legally slaves, having been kidnapped from Africa and recently sold in the Havana slave market. The new "owners" were taking them from Havana to their location in Cuba when the blacks revolted and took control of the ship.

The case was appealed to the U.S. Supreme Court, which upheld the District Court as to the facts, but varied in that, while the District Court had ordered the Van Buren administration to take them back to Africa, the Supreme Court simply ordered that they were to be set free.

One aspect of this which jumps out at me is the tenacity and zealousness which which the attorneys for the blacks pursued the case. These 43 clients spoke not a word of English, and it was amazing that a way was found to communicate with them. A linguist was enlisted to figure out the language, and then find someone who could interpret. The linguist offered compelling testimony at the trial to show that these blacks must have recently come from Africa. The efforts of the attorneys were so effective that the trial judge early on proclaimed that it was obvious that these were not slaves, but rather had been kidnapped from Africa for sale at the Havana slave trading center.

Compelling testimony was also offered by a British official who was intimately familiar with the Cuba slave trade situation. He testified as to the huge numbers of blacks which had been brought into Cuba in recent years, in violation of the Britain-Spain treaty outlawing the slave trade. He also was able to testify from first-hand knowledge that it was routine to forge papers to purport to show the legality of slave ownership, when said ownership was in fact illegal.  To obtain this compelling testimony was yeoman work on the part of these indefatigable lawyers. Kudos to them.

The main significance of this fascinating case is the tension between the executive and the judicial branches of government. After the blacks were discovered and taken into custody, the Spanish government demanded their return, and President Martin Van Buren was determined to comply. There is an interesting scene in the movie "Amistad", in which the Spanish minister asks Van Buren when the Spanish property would be returned. Van Buren responds, "It's in the courts". The minister says, "But don't you control the courts?" Van Buren responds that in this country we have an independent judiciary,. The minister responds, "But if you don't control the courts, how can you rule?"

This is indeed the key question. I think it is safe to say that in the vast majority of countries in this world, there is not an independent court system. I doubt that anywhere is the court system as independent as it is in the U.S. Our founders put together a complex system of checks and balances, so that no one person or faction could get too powerful. The founders were determined to protect minorities from the power of the majority. Indeed, we look at almost anywhere else in the world and we see majorities oppressing minorities, even engaging in genocide in some instances.

Once Van Buren made up his mind what he wanted to do, he requested an opinion from his Attorney General, and the Attorney General dutifully provided an opinion in support of returning the ship and captives to Spain. The AG's conclusion was that the vessel and cargo should be delivered to the Spanish minister, as the lawful representative of the government of Spain. Under his reasoning, it would then be up to Spain to sort out the legalities, i.e., whether the black captives were slaves or free men, and whether they should be charged with murder and piracy for taking over the ship and killing two of the officers. The AG relied heavily on a 1795 treaty between the US and Spain, which provided: "All ships and merchandise of what nature soever, which shall be rescued out of the hands of any pirates or robbers on the high seas, shall be brought into some port of either State; and shall be delivered to the custody of the officers of that port, in order to be taken care of, and restored entire to the true proprietor, as soon as due and sufficient proof shall be made concerning the property thereof."

This is obviously a simple-minded and straightforward argument, lacking in any nuance whatsoever. Did the blacks really qualify as "pirates or robbers"? If they were in fact free men legally, then they had the same right of self-defense as any other free men, so how could they be deemed to be "pirates or robbers"? And what constitutes "due and sufficient proof" of the ownership of the slaves? Through the hard work of the lawyers it was shown that the papers on board the ship were fraudulent, so how can those papers be deemed to be "due and sufficient proof"?

Van Buren was so confident of a ruling in the administration's favor that he ordered a navy ship to stand by to deliver the blacks to the Spanish government as soon as the ruling was made. He specifically ordered this to be done before the defendants had time to perfect an appeal of the decision. After all, the trial judge was a good Democrat, appointed by Van Buren's predecessor, Andrew Jackson, and Van Buren was supremely confident of a favorable result.

However, trial judge Andrew T. Judson ordered the administration to return the blacks to Africa. The administration appealed, and the case found its way into the Supreme Court. Van Buren was again confident of a favorable decision, as 5 of the 9 justices were Southern. Much has been made of the appearance of John Quincy Adams to argue on behalf of the black captives. It was felt by the defense team that a high-profile person was needed at this point, hence the request to Adams to join the team. However, the argument of Adams was more political than legal, and ultimately had little effect on the case. Indeed, Chief Justice Story, in a letter to his wife, said that Adams' defense was "an extraordinary argument, extraordinary for its power, its bitter sarcasm, and its dealing with topics far beyond the record and points of discussion." Much of Adams' argument was a harangue in which he complained about the interference of the executive branch in the case. The opinion rendered about a week later by Chief Justice Story ignored the executive interference issue, and followed the arguments that had been developed by Roger Baldwin, the lead lawyer on the case.

This highlights the problem lay people often have when they choose a "high profile" lawyer, one whose flamboyance and "bedside manner" far exceeds his or her actual legal ability. I have seen this phenomenon over and over, and it really is disheartening.

The main value of the Jones book for me is his account of the aftermath of the Supreme Court's Amistad decision. One aspect of this worth noting is the pressure the group of abolitionists known as the "Amistad committee", which had been directing the defense efforts, exerted on the lawyers to make a claim to the ship on behalf of the blacks. The lawyers properly rejected this request, as this claim had not been made during the legal proceedings. This illustrates how demanding clients can be, especially ones driven by fanatical ideas, but including those driven by egomaniacal self-centeredness, and ones in emotionally stressful situations, like divorce. As a lawyer one must stand firm against these extreme demands. The committee also made other demands, such as wanting to charge all of the people involved in imprisoning the blacks with false imprisonment. When denied that, the committee wondered if the federal government could be found liable. Baldwin correctly responded that this can only happen if the imprisonment was without probable cause and done out of malice, which I believe is still the law today. Other demands were similarly deflected.

The status of the legal slave Antonio is interesting. He was the captain's personal slave, and at one point had expressed that he wanted to return to Cuba, which is what the Supreme Court ordered. The abolitionists were dead-set against this, and after being advised there was no legal recourse, Antonio was submitted to the underground railroad and ended up a free man working in Montreal.

The group of blacks remained in limbo for some months, as the abolitionists struggled over what to do with them. Finally, in late 1841, enough money was raised and the remaining 35 survivors were put on a ship to Africa.

Spain continued to press its claim for indemnification until the Civil War ended the matter. A congressional committee even went so far as to authorize the payment, but the committee report falsifying the date of the capture of the group, in which it was stated the date was 1840 instead of 1839, meaning that the blacks would have been in Cuba for 14 months instead of 2 months, brought a scathing rebuke from Adams, who was still in the House of Representatives at that time.

The motivation of Van Buren in opposing freedom by the blacks was not just to soothe over US-Spanish relations. It was also said that he was pandering to the southerners whose votes he would need to be re-elected in 1840. How ironic, then, that he was defeated in that election, and in the process lost 3 of the 5 states considered part of the "deep south".

An eerily similar pandering failure took place in the year 2000, when Al Gore infamously said that Elian Gonzalez should have his custody determined by a Florida family court, instead of being returned to his father in Cuba. This was just an incredible idiocy on Gore's part, and his later defeat in Florida was sublimely ironic. All that pandering to the Cuban-Americans in Florida, sacrificing his integrity in the process, and for what? No integrity left, and no presidency. Gore must have gone brain-dead when he made that statement. It could not have been an off-the-cuff comment, as it was a very calculated attempt by him to break with the Clinton administration, and show his independence. How in the world could he have thought it was fair to make Elian's father come to this country, where he had never been, where he knew nobody, and did not speak the language, to litigate his right to custody of his own son? It makes absolutely no sense, and Gore should be ashamed of himself, as should Van Buren. Both sold out their integrity for votes, and both were defeated. American voters may not be sophisticated, but they at least know when they are being blatantly pandered to, and they rightfully reject such attempts. (Which is why Obama will beat Romney in this year's election. Romney is so obviously pandering that his election would be unthinkable.)

The real question remains: how is it that  Supreme Court, which has no abilty to enforce its rulings, continues to maintain its position in American government? The irony is that its rulings can only be enforced by the executive branch. If the executive branch decides the court's rulings are not worthy of enforcement, what happens then?

The only case I know of where this happened was in an 1830's Native American rights decision, after which Andrew Jackson reportedly said, "John Marshall has made his decision, now let him enforce it." In the early 1970's many feared another such incident would come up, when the Court ruled that Nixon had to turn over the Watergate tapes. What if Nixon had refused?

It is said that the U.S. is the only country in the history of the world founded on an idea. Part of this idea is the delicate separation and balance of powers set out in the constitution. That idea is still respected enough today that the U.S. continues to honor its court decisions. This is the only way to prevent the majority from running roughshod over the rights of minorities.