Wednesday, December 6, 2017

The Gambling Case

This case was argued this week before the U.S. Supreme Court. The issue is whether states have the right to allow legal gambling on sporting events.

Usually the doctrine of preemption would apply, meaning that the states have to yield to the federal government, in an area in which the federal government has enacted legislation. The problem here is that the federal government has not undertaken to regulate gambling. All the feds did was dictate, in a 1992 law, that the states were prohibited from enacting any legislation allowing gambling on sporting events (except for Nevada, which was grandfathered in).

What this means is that the concept of federalism is front and center in this case. It will be interesting to see whether the conservative justices, who usually make a big deal out of claiming to be in favor of federalism, and states' rights, will be true to their conservative roots and rule for the states. Stay tuned.

Tuesday, December 5, 2017

George Will on the Colorado Cake Case

The famous Colorado bakery case, stemming from the refusal of a baker to bake a cake for a gay wedding, is being argued today in the U.S. Supreme Court. I have previously expressed my sympathy with the baker in this case.

George Will came out with an interesting position, breaking with most of his conservative colleagues. Will says that the cake is primarily food, and "the creator's involvement with it ends when he sends it away to those who consume it." Consequently, the baker ought to lose the case.

However, Will goes on to say that the gay couple who brought this case "have behaved abominably." Will says that the baker's actions "neither expressed animus toward them nor injured them nor seriously inconvenienced them." They simply could have gone down the street to another baker, rather than put the poor baker through the legal wringer.

As a result of the legal wrangling, the baker has stopped making wedding cakes, thereby sacrificing 40% of his business. His number of employees is down from ten to four.

Your attitude about this case is probably determined by whether you see it as a gay rights case, or a First Amendment case. I tend to see it as a First Amendment case.  The gay couple have every right to get married, based on a Supreme Court decision which I wholeheartedly agree with, and they have every right to have whatever kind of wedding ceremony they want. The issue is whether they have a right to have a cake baked by a particular baker, or their photography done by a particular photographer. For the government to enforce such rights seems an overreach.

In an editorial in today's USA Today the baker, Jack Phillips, says he is happy to sell a cake off the shelf to anyone, but he draws the line when asked to violate his personal principles and beliefs. I think this is drawing the line at the right place, from a legal standpoint.

A the oral argument today, the liberals were clearly on the gay couple's side, and the conservatives on the baker's side. Kennedy seemed torn between the two sides, so look for a 5-4 decision with Kennedy, as so often happens, casting the deciding vote.

Surely this case represents another example of our national tendency to whine and complain, to seek legal redress when resort to the courts is totally unnecessary. Although Justice Kennedy asked tough questions of both sides, he seemed more outraged by the gay couple's side, observing that the way the case was handled by the Colorado Civil Rights Commission evidenced a "hostility to religion".

Friday, December 1, 2017

Two Recent Football Issues: A Commentary on our Entitlement Mentality

The fist issue involves Greg Schiano, an Ohio State assistant coach who was hired to coach Tennessee on Sunday, and then unhired the next day after a firestorm of protest arose from Tennessee fans, former players, and state legislators. The protest was centered around Schiano's involvement in the Penn State program, at a time when Jerry Sandusky was molesting young boys.

What is striking to me is the reaction of the national sports talk media, which almost unanimously rose up in protest over Schiano's being tarred by less than convincing evidence of any involvement in the Sandusky scandal. Only one brave commentator spoke out on the other side; this was Bill Reiter, host of a CBS sports radio show on 6-10 P.M. weekday evenings. Reiter rightly pointed out that Tennessee can hire whoever it wants, and that the pity should be reserved for the boys Sandusky molested, not for an assistant coach who may or may not have known of Sandusky's nefarious actions. Reiter pointed out that the evidence pointing to Schiano's involvement in the scandal was based on sworn testimony, offered under oath under penalties of perjury, and this evidence should not be dismissed so cavalierly as the national media were doing.

And then we had the case in the last few days where the NFL Giants announced that Eli Manning would not be starting Sunday.  Here again, a firestorm of protest arose from the lamestream media. "You can't do this to Manning", came the insipid cries, "he has a 210 consecutive game streak" starting at quarterback, second all-time only to Bret Favre.

Here again, only one commentator was thoughtful and mature enough to voice the other side, this being Colin Cowherd. Cowherd pointed out that the Giants can start whoever they want at quarterback, and he pointed out many good and valid reasons why the Giants might want to make a change at this point.

What this dramatizes is how an entitlement mentality has infected our national psyche. People feel entitled to something, whether they have earned it or not.  Related to that is that we have also become a nation of whiners, whining whenever something doesn't go like we had hoped, instead of vowing to work harder to do better in the future. In this case it isn't the two principals doing the whining, but rather their misguided supporters.


Thursday, November 9, 2017

On Invasion of Privacy: The Sipple Case

Back in the 1980s a friend of mine was complaining about the many telemarketing calls he was getting, saying he thought it "was an invasion of privacy". My response was "Of course it's an invasion of privacy. Any phone call is an invasion of privacy."

The point to keep in mind here is that if you are going to live in a society, you  necessarily will have to give up some of your privacy. The only way to have perfect privacy wold be to live by yourself on a desert island, or some other isolated place, and have no contact with the outside world.

The question is where do we draw the line between legal and illegal invasions of privacy. For a good discussion of this issue I refer you to the Oliver Sipple case, which I recently heard about on NPR's "Radio Lab" show.

Oliver Sipple was a decorated marine veteran who grabbed the arm of a would-be assassin of President Ford in San Francisco in 1975, instantly becoming a hero as he possibly saved the president's life. Part of the reporting which followed discussed the fact that he was gay.

Although Sipple was well-known to be gay in the San Francisco gay community, his family had not known until he was involuntarily outed by the media. His parents disowned him and broke all ties with him as a result. Sipple sued the San Francisco Chronicle for invasion of privacy.

The final decision in the case came in 1984, nine years after the original incident. The court rejected Sipple's claim, holding that summary judgment was proper in the case, and a trial was not necessary because the undisputed facts showed that Sipple had no legal claim.

The basic principle relied on by the court was that "When the subject-matter of the publicity is of legitimate public concern, there is no invasion of privacy." Here the newsworthiness was two-fold: one, to counter the popular perception (at that time) that gay men were timid, weak, and unheroic; and two, to raise the important question of whether President Ford's failure to promptly thank Sipple for saving his life was due to Sipple's homosexuality.

There was another, independent, basis for the court's conclusion, and that is that the facts complained of were not private. This is because Sipple was well-known in the gay community before this event. The court noted that "prior to the publication of the newspaper articles in question, appellant's homosexual orientation and participation in gay community activities had been known by hundreds of people in a variety of cities, including New York, Dallas, Houston, San Diego, Los Angeles, and San Francisco." Hence, his sexual orientation was already in the public domain, and the articles in question "did no more than to give further publicity to matters which appellant left open to the eye of the public."

Sipple's health declined over the years, and he drank heavily. He was found dead in his apartment in 1989, with a bottle of booze next to him and his TV still on. He had often expressed regret that he had tried to foil the assassination attempt, because of the unwanted publicity it brought him.

Tuesday, October 17, 2017

Ohio's Two Ballot Issues

Blatantly false advertising has characterized the campaigns for Ohio's Issue 1, on victim's rights, and Issue 2, on drug prices.

Opponents of Issue 2 have claimed that passage of the issue would  "threaten the benefits veterans have earned." This is a blatant falsehood. There is no reason to believe drug prices charged for veterans would be affected. The VA negotiates these prices on a national basis, and one state's passage of a law like issue 2 is not likely to affect it.

But beyond that, the prices at issue are not paid by veterans anyway, they are paid by the VA. So the idea that any veteran would pay a single dollar more is just plain wrong.

 A similar pattern of lies is seen in Issue 1 advertising. Our Attorney General is falsely claiming that the issue would give crime victims enforceable rights. Again, this is blatantly false, as issue 1 by its own terms provides no enforcement mechanism whatsoever.

I don't presume to tell anyone how to vote, but I do presume to ask you to reject advertising that is blatantly false.

Tuesday, October 10, 2017

On Kneeling for the Anthem

A letter-writer to "The (Toledo) Blade" asserts that NFL players "have not earned the right" to protest by kneeling for her national anthem. This is so wrongheaded and unAmerican as to be unworthy of a response, but the huge number of Americans who hold to this view necessitates a response.

The right to protest is what our country is all about. It is what separates us from almost every other country in the world. In many countries you protest and you get jailed, often without charges and often for years at a time.

The letter-writer's thesis is that if you haven't served in the military, then you don't have the right to protest during the playing of the anthem. The basis for this seems to be that we have freedom only because of past wars fought by the military. This is demonstrably false, as an examination of our past wars reveals that only the Revolutionary War, waged more than 200 years ago, was fought to preserve our freedoms. All other wars have been wars of choice, mostly fought in faraway places in which our freedom and way of life was in no way threatened.

Our anthem is unworthy of support purely from a musical standpoint. It is practically unsingable. Over the years I have heard many national anthems, and ours is by far the worst. Much better choices would be "America the Beautiful", "My Country Tis of Thee", or, my personal favorite, Woody Guthrie's "This "Land Is Your Land". The anthem should be protested from a musical standpoint alone, if for no other reason.

We denigrate sports stars for not "remembering where they came from", for being silent on important social issues, for not speaking out when they have the forum to do so. Now that athletes are getting this message and speaking out, they are condemned. They are damned if they do and damned if they don't.

Americans need to understand what patriotism and love of country really looks like. It means wanting what is best for our country. It means honoring the things that have made our country great, such as its immigrants, its innovations, and the concepts of liberty enshrined in our Constitution. Idolizing the flag does not contribute to our national health as a people, and has nothing to do with true patriotism.

Sunday, October 8, 2017

The Gay Rights "Cake" Case

The Supreme Court has agreed to hear a case out of Colorado in which a baker refused to bake a cake for a same sex wedding. I predict that this will be a setback for the gay rights movement, as the baker in this case is a very sympathetic figure.

The baker was perfectly willing to sell a cake already made to the couple, he just refused to bake one specially for the wedding. Common sense would dictate that he should have this right. Initially his legal basis for this was said to rest on religious grounds, as well as on first amendment grounds of self-expression. However, it seems that more recently the focus has shifted away from the religious grounds, which are weak, to the right of self-expression. After all, how in the world can a government have the right to dictate to an artist what kind of art he should be making?

Wednesday, October 4, 2017

The Gerrymandering Case

The Supreme Court heard arguments yesterday in a gerrymandering case from Wisconsin. The Republican-controlled Wisconsin legislature was so effective in gerrymandering when it redrew the districts after the 2010 census, that the GOP was able to win 61% of the seats in the legislature, even though it got only 49% of the votes.

This is obviously not right, but the Court will have to come up with a principle to base its decision on, if it wants to overturn the gerrymandering, which has become worse and worse with the new computer technologies now available. Kennedy, widely assumed to be the swing vote, indicated in a 2004 case that he felt it should be reined in, if a suitable test could be articulated.

A somewhat humorous statement was heard from Chief Justice Roberts, who, according to a news report, "said the social science metrics would be hard to explain to average people who might assume that the court made a partisan ruling. Such an assumption, he said, could harm the integrity of the court."

I will grant that Roberts has been trying hard to restore the integrity of the Court since he became chief justice in 2005. However, the ridiculous and totally partisan decision in the 2000 election case has ensured that the court will never again command the respect it once had. It is widely recognized now that the Supreme Court is a partisan institution, and nothing Roberts can do will overcome that.

I hope the Court will do the right thing and strike down this blatant gerrymandering, which denies voters their rights. The case seems quite similar to the famous "one man, one vote" case, Baker v. Carr, decided in 1962. I would like to see the Court come up with a persuasive rationale for the decision, one powerful enough to stem the tide of partisan gerrymandering in the state legislatures.

Monday, October 2, 2017

Aung San Suu Kyi: From Nobel Prize winner to Fallen Heroine

The case of  Aung San Suu Kyi is extremely sad. She was revered as a human rights advocate in 1991 when she won the Nobel Peace Prize. Now, the Oxford college which she attended in the 1960's has removed her portrait from public display and put it in storage, due to universal disgust over the way she has tolerated the persecution of Muslims in her native Myanmar.

Apparently she functioned better as an anti-government dissident than she has as the de facto leader of Myanmar. She has turned a blind eye to the ongoing tragedy of hundreds of thousands of Muslims being forced to flee to neighboring Bangladesh. When interviewed about this, she gave cold and callous answers, and afterwards angrily complained that "I didn't know I was going to be interviewed by a Muslim".

The sad lesson from this is that she is as filled with ethnic and religious hatred and intolerance as anybody else. If it is possible to do so, her Nobel prize should certainly be revoked. A woman of peace she is not.

Saturday, September 16, 2017

Hillary's New Book

It has become customary in our society to blame somebody else whenever anything goes wrong in our lives. We never want to say it's our own fault; or, even if not our fault, we rarely put as much energy into working hard to do better in the future, as we do into assigning blame.

Hillary's new book on her failed campaign, called "What Happened", blames everybody and everything but herself for running such a dismal campaign. It is the fault of the misogyny of the voters. It is the fault of Bernie Sanders running against her in the primaries. It is the fault of ..., well, you get the point.

The fact is that Hillary was a horrible candidate, and ran a horrible campaign. She was stiff, stilted, dull, boring, robotic, unspontaneous, uninspiring, lacking in passion, uncomfortable in her own skin, and unable to think on her feet. Some, like the infamous Stephanie Krehbiel, call this sort of criticism misogyny. I think people like Stephanie Krehbiel need to get off their high horse and realize that equality means being judged by the same standards that everyone else is judged by.

Tuesday, September 5, 2017

The Menendez Case

For the first time in 36 years, a sitting U.S. Senator is facing a federal bribery trial. The trial of New Jersey Senator Robert Menendez begins today in a Newark courtroom.

The prosecution will need to show that this case is different than the McDonnell case. In McDonnell, the Supreme Court unanimously threw out the conviction of the former Virginia governor, holding that the meaning of "official act" does not include merely setting up a meeting, calling another public official, or hosting an event.

Menendez went far beyond that, doing numerous favors for his friend and benefactor, a wealthy Florida eye surgeon. Members of Congress have for many years been little more than administrative aides, constantly doing favors for their constituents, and constantly having to engage in fund-raising activities to finance their next campaign. The Menendez case should help to draw the line between which activities are normal and legal, and which cross the line and become bribery.  Stay tuned.

Tuesday, August 29, 2017

On Parental Rights

Years ago the Progressive magazine had a despicable article titled "Invasion of the Body-Snatchers". What made it so despicable is that the message of the article was that social welfare people swoop in and remove kids from their parents, without good reason for doing so.

I knew from available stats that nationwide only about 30% of abuse and neglect claims get confirmed by the social welfare people. And in my state, Kansas, the figure was only 12%!

I further knew that even for cases that were able to be confirmed, public policy mandated that the children were to be placed with their parents if at all possible. Temporary placement with relatives or foster care was sometimes an option, but the resources of the agency were always to be directed toward "reintegrating" the kids with the parents.

After that horrid article I personally boycotted "Progressive" magazine. However, now comes a similar article in "The New Yorker". An article in the August 7th and 14th issue, entitled "The Separation", reveals its bias when it starts out, "What should you do if child-protective services comes to your house. You will hear a knock on the door, often late at night. You don't have to open it, but if you don't the caseworker outside may come back with the police." The whole article is written from the point of view of the parents, and as such is hopelessly biased.

In point of fact, caseworkers have a horribly thankless job in trying to protect children, while still showing proper deference for the rights of the parents who have abused those children. They deserve our gratitude, not our condemnation.

Follow-up note.  To its credit, "The New Yorker" in a subsequent issue published three letters making the same points I make above.  From the first:  "Although preserving families is a noble goal, it is not always in the best interest of the child....The heartbreaking truth is that termination of parental rights is sometimes in the best interest of the child."

From the second:  "Confidentiality laws don't allow caseworkers to speak about their cases; however, I wish MacFarquhar had done more to give them a voice".

From the third:  "MacFarquhar sees a system that's rigged against parents. Rather, it is a system that, day in and day out, believes parents' denials and excuses, spends taxpayer dollars to provide services for problems that are largely intractable, and fails to protect children."

All I can say is, a big AMEN.

Monday, August 14, 2017

Some NFL Issues

Two players dominate sports talk radio these days--Ezekiel Elliott and Colin Kaepernick.  The Elliott matter just came up a few days ago when Commissioner Roger Goodell handed down a 6-game suspension for a series of domestic violence incidents a year ago with his ex-girlfriend.

Some commentators whine vociferously that this is unfair because Eliot was never charged with a crime. This is a totally irrelevant point.  The NFL conducted an intensive year-long investigation, and went into the matter in considerably more depth than a city prosecutor ever could have.  It seems some people don't understand that we have prosecutorial discretion in this county, meaning that prosecutors get to pick and choose which cases they want to pursue with criminal charges, and which ones are not worth the expenditure of their limited time and resources.

One especially ignorant commentator on CBS sports radio complained that the NFL should turn over all of its evidence to the city prosecutor for prosecution. The idea that any prosecutor would want to pursue this at this late date is ludicrous. What would be the point? We are talking about  misdemeanor violations by someone with no prior criminal record, meaning the defendant, even if found guilty, would surely get probation, or perhaps a deferred prosecution agreement would be entered into prior to trial. We are not talking about a serious felony here.

The NFL proceeded correctly by doing an exhaustive investigation.  Perhaps the 6 games is too long of a suspension, but certainly the NFL wants to send a message that domestic violence simply will not be tolerated. And it might turn out to be just the wake-up call which Ezekiel Elliott needs, in order to grow up and become the good citizen which the NFL wants its players to be.

And somehow, the Colin Kaepernick saga continues to receive hour upon hours of air time. This is an absurd phenomenon.  What gets commentators (and callers) all riled up is that Kaepernick has yet to receive a job from another NFL club, after he left the 49er's at the end of last season.

People argue that he is one of the 96 best quarterbacks in the country, as if that should settle things.  Of course Kaepernick had the right not to stand for the national anthem, which is what started this whole controversy almost a year ago now.  And of course NFL owners have the right not to hire him, if they feel he is not a good fit for their organization for whatever reason. End of story, let's move on to something worth talking about.

Monday, July 31, 2017

George Will at his most Thought-provoking.

1.  On Non-voting.  A symposium on "the problem of declining voter participation" prompted a 1983 column in which Will took issue with the idea that low turnout is a "problem". He says that "As more people are nagged to the polls, the caliber of the electorate declines. The reasonable assumption about electorates is: Smaller is smarter."

Will points out that democracy depends on consent of the governed, and "nonvoting is often a form of passive consent". It is only when the people are riled up that voter turnout rises, as in Germany in 1933, when turnout was close to 90%.

Will says that "the glory of our politics, as conducted by two parties with low ideological flames, is that the stakes of our elections, as they affect the day-to-day life of the average American, are agreeably low". This is in line with Will's oft-expressed conservative view that government's influence in everyday American life is, and should be, minimal.

Finally, when it comes to presidential elections the result in most states is a foregone conclusion, making it seem pointless to vote.

2.  On "community".  In analyzing the 1984 election between Reagan and Mondale, Will waxes philosophic on various notions of community. He says that Mondale's notion was of a national community, in which the federal government would try to foist on the nation its various schemes and programs, a liberal idea which gained prominence in the 20th century.

Will argues that this view is wrongheaded, because it "envisions a degree of national cohesion and central direction known only in wartime". Only in wartime does the country come together with a unity of national purpose. Otherwise, we are a far-flung collection of local communities, united only in the sense that we all participate in national elections (and even these are really only state-by-state elections, so there are no truly "national elections").

Will argues that the national unity sought by liberals like Woodrow Wilson, FDR, and LBJ led to the federal government "becoming a divisive force, a hammer pounding local communities", using "bureaucratic edicts and judicial fiats to launch...an assault against the traditional prerogatives of locality and neighborhood to define and preserve their own ways of life. In the name of the national community, liberalism tried to break smaller communities to the saddle of the national government."

The upshot is that Will sees the 1984 election as a referendum on the issue of whose idea of community is best. The country resoundingly sided with Reagan's idea that the country is a collection of communities, an "archipelago", if you will, of diverse local communities.

What makes this onto my "most thought-provoking" list is the impact this issue has on the question of individual liberty vs. the rights of the community. If a given community wants there to be no abortions in its midst, does that comunity have the right to ban them? Should it have that right? Will would argue that the answer is yes. Should it have the right to ban what it regards as pornography? Again, Will's answer is yes.

Here is "where the rubber meets the road", in that there are no easy answers to these questions. Does it even make any sense to talk about the "rights" of the community? I have a hard time wrapping my mind around this question.

3.  On "identity politics".  Will did not use this term, but he was perhaps the first to expose the fallacy of engaging in identity politics when he wrote, after the 1984 election, that "Democrats tried to use Geraldine Ferraro to get half the electorate to act from frivolous motives. The selection of her was condescending toward women, an attempt to trigger collective, reflexive voting by women on something other than serious issues."

We have seen today that the use of identity politics has gotten completely out of hand. An example is when I was called a misogynist by a Facebook friend for not jumping on the Hillary bandwagon after Sanders withdrew. Ordinarily I would not name the offender, but in this case she is a public figure so I can name her: Stephanie Krehbiel.

I made the rather innocuous and obvious observation that Hillary Clinton was boring and preprogrammed as a candidate. Ms. Krehbiel jumped all over me for this; she said that a woman is unable to show personality because then she will be rejected as too emotional.

I replied with the example of Elizabeth Warren, a very passionate woman who won election and remains very popular to this day, despite being very emotional about what she believes in. This example completely refuted the allegations of Ms. Krehbeil and her minions.

And yet, they continued to barrage me with misogynist complaints, claiming that anybody opposing Hillary on personality grounds must be a misogynist! I responded with an account of my long history of observing and commenting on presidential elections, which goes back to 1960 (approximately twice as long as Ms. Krehbiel has been alive). During this time I have often commented negatively on male candidates whose personality defects made them poor candidates to lead the country.

Notwithstanding my patience in offering this explanation, Ms. Krehbiel not only failed to apologize, she failed to even acknowledge my explanation. Talk about a closed mind!


Every national commentator I have seen has echoed my comments. The adjectives differ from commentator to commentator, but the idea is the same: Hillary Clinton was stiff, stilted, dull, boring robotic, unspontaneous, uninspiring, lacking in passion, uncomfortable in her own skin, and unable to think on her feet. I suppose Stephanie Krehbiel thinks that we are all misogynists?

The use of identity politics has exploded in recent times, to the detriment of our democracy. And the reason for this is people like Stephanie Krehbiel, who see people not as individuals but as part of some sociological group, and who refuse to listen to anyone who disagrees with them.

Friday, June 9, 2017

The Hubris of Theresa May

Theresa May called a British election three years early, thinking it would consolidate the strong hold of her party on the British Parliament. Instead, she failed to receive even a simply majority!

Her hubris is evident in several respects. She refused to debate her opponent, which is odd in light of the fact that British parties actually represent particular points of view, in contrast to American parties.

Also, her party had to walk back a position taken in its manifesto, the first time in British history this has happened. The position which came under intense attack was a proposed policy of forcing elderly people to pay more for their in-home care.

Interviews with British voters by NPR showed that nobody felt that May was "on their side", in contrast with the Labour candidate who resonated with voters by decrying cuts in government services.

Looming over the entire election was the "Brexit" issue, which May has completely bungled by blindly following the narrow 52-48 election result, instead of showing true leadership by trying to ameliorate the effects of this unfortunate vote. Instead of showing leadership, she showed "followership", and this is what came through to voters who have rejected her phony "leadership".

Saturday, June 3, 2017

Free Speech in U.S. vs. Europe

One of the most striking things about the Floyd Abrams books (see last post) is the difference between free speech in the U.S. and the rest of the world. We read almost daily about dissidents in third world countries being persecuted for their opposition to their governments.

But what is striking is that Europeans do not enjoy the free speech freedoms that we take for granted in the U.S.  In "The Soul of the First Amendment", Abrams says that all of the cases he discusses in which truth was a defense in a libel trial would have turned out differently in Europe.

Abrams cites many examples of the European hostility to free speech, but the one that is the most striking is a principle adopted in 2014 by the European Court of Justice, in which the "right to be forgotten" was enunciated. Under this ruling, Google and other search engines were required to remove content deemed to be old enough that it was "inadequate, irrelevant, or no longer relevant".

Despite the fact that we are talking about true information here, Google nonetheless had deleted over 4000,000 articles as of 2015.  Examples include the following:  1) a story about a policeman whose assault on a man was filmed and who was jailed for 21 months; 2) an article about people under 30 suffering strokes; 3) an article about a 27-year-old man who was killed in a plane crash in Nepal.

The list goes on and on, but the point is that these are stories containing true information, and to order them removed from Google shows the antipathy Europeans have to free speech. Personally, I prefer the U.S. approach, which gives me the right to discuss matters of public interest in a  free and robust manner.

Tuesday, May 30, 2017

"Speaking Freely", by Floyd Abrams

Floyd Abrams, the country's top free speech lawyer, describes in this 2005 book a number of his most memorable free speech cases. The most memorable, of course, was the 1971 Pentagon Papers case. In that case the Nixon Administration took the New York Times to court in an attempt to prevent the publication of the Pentagon Papers, which was a study undertaken by the U.S. government to figure out how we got mired in the Vietnam mess. Abrams represented the Times. The government's argument was that publication of the papers would jeopardize national security.

The issue was under what circumstances should the courts impose "prior restraint" on a proposed publication. A past case had held that the First Amendment generally prevented prior restraint, and the only exception ever mentioned was from a 1931 case, in which it was stated that publication of "the dates of departures of ships during wartime" could be prohibited.

Abrams won this case 6-3 in the Supreme Court, as the government failed to prove that any significant harm would result from the proposed publication. Indeed, when Abrams contacted the government witnesses ten years later for an article he was writing, not a single one of them could cite a single instance in which publication of the papers had resulted in any harm to U.S. security interests.

Most of the cases Abrams discusses involve the principle that true information, lawfully obtained, about matters of public interest, cannot be suppressed. The first such case Abrams discusses was a Virginia case involving a Virginia statute that criminalized the reporting of confidential information about a pending disciplinary proceeding against a sitting judge. A unanimous Supreme Court held that the truthful report could not be subject to criminal sanctions.

Next Abrams discusses a West Virginia case in which a newspaper disclosed the name of a juvenile offender who had shot and killed a classmate. Again, the truthful report of information, lawfully obtained, about a matter of public interest was held to be immune from criminal liability.

Then we have a case in which the singer Wayne Newton sued NBC for a report documenting Newton's ties to organized crime. Again, the information was shown to be 100% true, and Newton was sent on his pathetic way with no recovery.

Next we have a case in which the Long Island newspaper Newsday reported on heroin trafficking in Turkey. A Turkish citizen who had been named as a drug trafficker sued for libel, but was rebuffed when the truth came out at trial.

Then a 1982 case in which ABC was sued by Victor Lasky, a notorious right-wing journalist, for being mentioned in a special on McCarthyism in the 1950's in a small West Virginia town. Again, Lasky was shown to all wet, due to the diligent efforts of Abrams and his team.

A different kind of issue presented itself in the Brooklyn Museum case. Here New York mayor Rudy Giuliani was attempting to pull city funding from the museum, because he personally objected to a single painting which was part of a special exhibit. Abrams successfully obtained an injunction against this action. This case arose before Giuliani became something of a national hero following 9/11; it certainly shows Guliani in a much less favorable light than in the 9/11 aftermath.

And then we have the McCain-Feingold campaign finance reform case. This law attempted to reform campaign financing. Abrams pursued a case against this law, but lost 5-4 in the Supreme Court. The three conservatives, Scalia, Thomas and Rehnquist, along with Kennedy, were with Abrams, while the four liberals, Souter, Breyer, Stevens, and Ginsburg, joined by the middle-of-the-road O'Connor, voted to uphold the law.

It is interesting to note that liberals in this country were almost uniformly in favor of the law, and the appearance of Abrams on the conservative side represented a break in the traditional support he had enjoyed from liberals. Abrams makes a persuasive case that the limitations on speech represented by McCain-Finegold are improper under the First Amendment.

As Abrams describes in 2017 book, 'The Soul of the First Amendment", he again represented Senator Mitch McConnell in a later case, the infamous (to liberals) Citizens United case. Here the court unanimously rejected the restrictions on campaign spending, so Abrams got, in effect, the last laugh on this issue.

Like most liberals, I have a visceral dislike of the Citizens United ruling, but Abrams makes a convincing case that it is correct. He points out that very few of the million-dollar donations to super-PACS since the ruling have come from corporations, which were the subject of the ruling. And, the 2016 election, in which well-funded candidates like Jeb Bush got soundly trounced, sheds doubt on the doomsayers who fear money has corrupted our politics.

But the last case discussed here is one in which I severely disagree with Abrams, with no possibility that he will ever convince me otherwise. This was a 2000 case out of Colorado, Hill v. Colorado, which involved a Colorado criminal statute making it illegal to approach another person without her consent within 100 feet of a medical facility, for the purpose of engaging in "oral protest, education, or counseling".

To me this statute is easily defensible, because at its heart it involves actions, not speech. And yet, Abrams defiantly took this to the Supreme Court, where he lost, 6-3, with Thomas, Scalia, and Kennedy dissenting. Justice Stevens' majority opinion upheld the law based on "the privacy interest in avoiding unwanted communication". The decades-old phrase of Justice Louis Brandeis comes to mind here, the "right to be let alone".

According to Abrams, the Hill case was "effectively reversed" in 2014 by an "almost identical" case out of the state of Massachusetts. This was the infamous case of McCullen v. Coakley. Amazingly, this was a unanimous Supreme court decision, and one not easily explainable. The majority opinion didn't explicitly say it was overruling Hill, and mentioned Hill only in passing. Given that two members of the majority in Hill were still on the court, and that other liberals had since joined the court, it is hard to conclude that Abrams is right when he calls the cases "almost identical".

The two case are certainly superficially identical, since both involve a statute regulating protest activities outside abortion clinics. But the problem in the Massachusetts case was that the statute limited activities at all Massachusetts abortion clinics, when the problem the statue was designed to address had existed at only one of the clinics. Therefore, the court held that the statute was not "narrowly tailored" enough to address the problem; i.e., it restricted speech far more broadly than necessary to address the problem.

Another problem with the Massachusetts case is that the named plaintiff was not the typical loudmouthed, rabble-rousing abortion protester. Rather, she was a gentle, kind, caring individual. Hence the case became one of those "hard cases that makes bad law". Indeed, the majority opinion even mentioned the word "caring" in describing her counseling technique.

It is interesting that the same three conservatives who dissented in Hill also objected to the court's reasoning here, though they concurred in the result. The three concurring justices felt that a less stringent standard than "strict scrutiny should apply, since they felt that the statute was "content based".

It is demeaning and condescending to women to think that they would be going to have an abortion without having thought through the consequences. I can only hope that this GOP war on women will some day come to an end.

Friday, April 28, 2017

Letter to National Review

In "The Gorsuch Triumph", Ramesh Ponnuru states that Robert Bork was rejected by the Senate in 1987 "for being too conservative". This is a gross oversimplification, and even a misstatement of, Bork's confirmation problems.
Bork's view was that the Constitution restricted the ability of government to limit our freedoms only to the extent of liberties specifically spelled out in the Constititution. This is the exact opposite of what our Founders intended. The Founders intended that "We the People" were only giving government the powers specifically outlined in the Constitution, with all other powers being reserved to the people. Bork's endorsement of excessive power for the federal government, well beyond that intended by the Founders, can hardly be called "conservative" in any meaningful sense of the word.
But Bork had more problems than this. He came across as aloof and unapproachable, turning off even many of his supporters. As Senator Howell Heflin commented, "He's too professorial".
As documented in Ethan Bronner's "Battle for Justice: How the Bork Nomination Shook America", Bork waffled over key issues during his confirmation hearing, repeatedly flip-flopping back and forth. This made him look hopelessly opportunistic, and called his character into question. Bronner says that Bork "modified views he had held strongly and repeated widely for two decades".  His repeated waffling earned him "the contempt of some fervent admirers".
Ponnuru states that Bork got "burned for his candor". To the contrary, Bork lost because he was unable to communicate his beliefs in an understandable way, despite Committee Chairman Biden's bending over backwards to give him a fair hearing. Consequently, the Senate rightly concluded that he would not make a good Supreme Court justice.

Monday, April 24, 2017

The Wisdom of Maya Angelou

I heard a great quote on NPR the other day from Maya Angelou. She said that “I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”

It struck me that perhaps this explains why Donald Trump could win an election, despite his many falsehoods and misdeeds. People are willing to overlook his many misstatements of fact, because he makes them feel like he is somebody who will stand up for them. What is important, as Angelou states, is not what he says, but how he says it.

Wednesday, March 29, 2017

2017 MLB Predictions

Hard to believe another season has rolled around. Here we go again with the annual predictions.

AL East        Red Sox, Blue Jays, Yankees, Orioles, Rays

Red Sox look even stronger this year. Yankees are in rebuilding mode and are a year or two off from becoming contenders, but the kids look good enough to take 3rd.


AL Central   Indians, Royals, Tigers, White Sox, Twins

Indians are even stronger with Encarnacion on board. Their pitching staff looks awfully strong.They should win regardless of whether Brantley bounces back from his injuries. Tigers are still on the fence as to rebuilding or sticking with their veterans. The veterans are getting old, but the contracts are too bloated to get rid of. The Royals may nose them out for 2nd.

AL West       Astros, Mariners, Rangers, Angels, A's

This could be the year the long-suffering Mariners break their playoff drought. The Astros and Rangers will also contend. Mariners for 2nd is sort of a sentimental pick.

NL East        Nationals, Mets, Braves, Marlins, Phillies

Hard to choose between Mets and Nationals. My first thought was to pick the Mets, but then I decided that relying on a bunch of young, hard-throwing pitchers simply invites injuries, and the Mets have been plagued by injuries and, I suspect, will continue to be.

NL Central   Cubs, Cardinals, Pirates, Brewers, Reds

Cubs are strong again. Reds have pitching injuries starting the season and look woeful.

NL West       Dodgers, Giants, Rockies, Diamondbacks, Padres

Dodgers are awfully strong. Padres are thought to be the worst team in MLB.

4/2/17 update.  As usual, I have picked some other predictions to compare to mine as the season progresses. This year they include USA Today, Sports Illustrated, and Bleacher Report. What is striking this time is how similar all the predictions are. There are only two teams for which the variation is more than one place in the standings, these being the Orioles and the Braves, each of which ranges from 3rd to 5th in the predictions.

The other variations include Orioles/Yankees for 3rd/4th, Rays/Orioles for 4th/5th, Royals/Tigers for 2nd/3rd, Twins/White Sox for 4th/5th, Rangers/Mariners for 2nd/3rd, Braves/Marlins for 3rd/4th, Reds/Brewers for 4th/5th, and Giants/Dodgers for 1st/2nd.

Thursday, March 16, 2017

Toledo March Swiss

The Toledo March Swiss, held on 3/11/17, had a record 68 players. Despite the huge turnout, the tournament ran smoothly, with no controversies. It was broken into three sections--Open, under 1800, and under 1400. Since I'm at my 1800 floor, I played in the Open.

In the first round I was paired against John Bidwell, a Master. Here is that game.

Round 1, chessart(1800)-Bidwell(2213), Benoni Defense

1 d4 Nf6 2 c4 e6 3 g3

Here I was quite confident, as the Catalan gives white good play with little chance for black counterplay.

3...c5

Usual is 3...d5, with white retaining a nice 12.5% edge. Next is 3...Bb4+, with a similar edge for white. 3...c5 is third, with equal prospects as black transposes to a Benoni, a double-edged game which gives black more winning chances..

4 d5 ed 5 cd d6 6 Bg2 g6 7 Nf3 Bg7 8 Nc3 0-0 9 0-0 Na6 10 Bf4 Nc7 11 e4

The database much prefers 11 a4. It gives black a huge advantage after 11 e4.

11...b5

This makes sense, but is not even given in the database!

12 Bxd6

This is a common theme in this variation of the Benoni. White aims to get his central pawns moving forward, in hopes at some point of discovering an attack for his B/g2 against black's R/a8.

12...Qxd6 13 e5 Qd7 14 ef Bxf6 15 Ne4 Bxb7 16 Rb1 Bg7 17 Nxc5 Qd6 18 Ne4 Qxd5 19 QxQ NxQ 20 Rxb5

The computer gives black a .34 edge here, but I still liked my position.

20...Bf5 21 Nd6 Nc3 22 Rc5 Bd3 23 Re1

The only safe square for my Rook to move to.

23...Rad8 24 Nb7 Rde8 25 h4 a6 26 a3 Nb5 27 a4 Nd4 28 RxR NxN+ 29 BxN RxR 30 Nd6 Bf8 31 Rd5 Re1+ 32 Kh2 Bc2 33. a5 Ra1 34. Ne4 Bb4 35. Nf6+ Kg7 36. Ne8+ Kf8 37. Nc7 Bxa5 38. Nxa6 Be1 39. Nc7 Bxf2 40. Rd2 Bg1+ 41. Kg2 Rc1 42 Nd5 h5?

In time trouble, black overlooks the fact that my knight move means I was now threatening to win material.

43 RxB RxR+ 44 KxB 

I now have knight + bishop for rook + pawn. While the point count is even, I actually have a huge advantage, because the two pieces are much better in this position. The computer gives me a 1.63 advantage.

44...Kg7 45. Ne3 Rb2 46. Ng2 f6 47. Nf4 Ra2 48. Bd5 Rb2 49. Bf3 Ra2 50. Kh1 g5 51. hxg5 fxg5 52. Nxh5+ Kg6 53. Bg4?

Here I go seriously astray. 53 g4 would preserve my advantage, which probably would be winning in light of black's time trouble.

53...Ra4 54. Bf3 g4 55. Bxg4 Rxg4 56. Nf4+ Kf5 57. Ng2 Rxg3 draw agreed 1/2-1/2

With the pawns off the board, black's exchange advantage is meaningless.

                         *********                                    **********

Round 2, Ravi Khanna(2136)-chessart(1800), Smith-Morra Gambit

1 e4 c5 2 d4 cd 3 c3 dc 4 Nxc3 Nc6 5 Bc4 e6 6 Nf3 d6 7 0-0 a6 8 Bg5(?)

I thought this was very weak, though my opponent disagreed. His idea is to eliminate my king bishop, and then gang up with his rooks on my d-pawn. Normal here is 8 Qe2.

8...Be7 9 BxB QxB 10 Rc1

The only game in the database continued 10 Nd4, with black winning in 42 moves.

10...Nf6 11 Bd3 Bd7 12. Na4 O-O 13. Nb6 Rad8 14. Qb3 Ng4 15. Rfd1 Nge5 16. Nxe5 Nxe5 17. Rc7 Nc6?

After the game my opponent suggested 17...Qh4, which seems much better. 

18 Qa3 Rfe8 19 Rxb7 d5 20 QxQ RxQ 21 Bxa6 Kf8 22 Bb5 Ke8 23 RxB Black resigns 1-0

                                     ***********                               *************
 
In round 3 I played a 9-year-old girl, who proved to be quite a formidable competitor!

Round 3, chessart(1800)-Sanjana Ramesh(1627), King's Indian Defense

1 d4 Nf6 2 c4 g6 3 Nc3 Bg7

A huge surprise. The King's Indian seems way too complex of an opening for a 9-year-old!

4 e4 d6 5 f3 0-0 6 Be3 Nbd7 7 Qd2 e5 8 d5 b6(?)

This move is not even in the database! I'm not sure what her idea was here.

9 Bd3 Nc5 10 Nge2

Probably better was 10 Bc2.

10...Nfd7 11 0-0 NxB 12 QxN Nc5 13 Qd2 f5 14 exf5

I  like to capture the P/f5  in this line, as I will get active play however black recaptures. 

14...Bxf5 15 BxN(?)


I now understand that this move is wrong on principle. In a 2006 Chess Life article, Bruce Pandolfini writes that "Generally, in a King's Indian, white needs a very good reason to part with his dark-squared bishop, as the bulk of his pawns are already committed to light squares." 15 b4 deserved consideration here.

bc 16 Ng3 Bd7 17 Nge4

This is the point of my play. I now have a permanent spot on e4 for a knight, and black can do nothing about it. And yet, the computer insists that black has a .53 edge!

17...Qh5 18 a4 Bh6 19 Qe2 Bg7 20 Nb5 Qd8 21 Qd2 a6 22 Nbc3 Bf5 23 a5 Kh8 24 Rae1 Qe7 25 Rb1 g5 26 g4 Bg6 27 b4 cb 28 Rxb5 h6 29 Kg2

The computer finally gives me an advantage, albeit a miniscule .02.

29...Rab8 30 Rfb1 RxR 31 RxR Qf7 32 Qe2 Qf4 33 Rb7 h5 34 h3 

Probably too cautious, as 34 Rxc7 is likely playable.

BxN 35 NxB hg 36 hg Rf7 37 c5 dc 38 Nxc5 Qd4 39 Nxa6?

The computer line runs 39 Ne6 Qxd5 40. Rb8+ Kh7 41. Nxg5+ Kg6 42 NxR. For once, I have to agree with the engine.

39...Qxd5 40 Rxc7 RxR 41 NxR Qxa5

And so we arrive at an ending, if any position with queens still on the board can be called an "ending".

42 Ne6 Bf6 43 Qe4??

And I promptly blunder a piece. I will play the rest of the game a piece down. I am guessing at some of the following moves, as my scoresheet was missing a few moves.

43...Qa2+ 44 Kg3 QxN 45 Qg6  Qe7 46. Qh6+ Kg8 47. Qg6+ Bg7 48. Qe4 Qf6 49. Qd5+ Kh8 50. Qa8+ Bf8 51. Qd5 Qf4+ 52. Kg2 Qd4 53. Qf7 Qd2+ 54. Kh3 Qf4 55. Qh5+ Kg7 56. Qe8 Qxf3+ 57. Kh2 Qxg4 58. Qxe5+ Kf7 59. Qd5+ Kf6 60. Qd8+ Kg7 61. Qc7+ Kg8 62. Qd8 Qf4+ 63. Kg2 Qg4+ 64. Kh2 Kf7 65. Qd5+ Kf6 66. Qc6+ Qe6 67. Qf3+ Kg7 68. Qc3+ Kf7 69. Qc7+ Kg8 70. Qd8 Qe5+ 71. Kg2 g4 72. Qc8 g3 73. Qg4+ Kf7 74. Qxg3 Qxg3+ 75. Kxg3 Draw agreed 1/2-1/2

Young Sanjana went on to destroy her Class A opponent in the last round, winning both the game and the post-game analysis. She gained 43 rating points for her fine performance in this tournament.

                                        **************                  ****************


Round 4, chessart(1800)-Jonathan Prairie(1657), Benko Gambit, Zeitsev Variation

1 d4 Nf6 2 c4 c5 3 d5 b5 4 cb a6 5 Nc3 ab 6 e4 b4 7 Nb5 Nxe4?

Black falls right into the trap. This loses his knight. This line of the Benko is called the Zeitsev Variation. Usual is 7...d6 8 Bf4 g5 9 Bxg5 Nxe4 10 Bf4, and now black can play 10...Qa5, 10...Bg7, or 10...Nf6, with the latter showing the best results for black.

8 Qe2 b3

The database gives only 8...Ba6 and 8...f5. Of course not 8...Nf6?? 9 Nd6#.

9 QxN

Perhaps 9 a4 was better, but I didn't like the messy position after 9...Qa5+ 10 Kd1.

9...Qa5+ 10 Bd2 Qxa2!

The exclam is for black finding this move despite not being familiar with this opening. It actually is a common idea in the Zeitsev, but kudos to black for finding it over-the-board!

11 Rb1 f5 12 Nd6+?

Here I start to go wrong. The simple 12 Qxf5 retains my advantage. If left on b5, my knight can participate in the queen-side defense with a later Nc3.

12...Kd8 13 Nxf5 g6?

Black misses a chance to take the advantage with 13...Ra4.

14 Ne3 Bg7

Now 14...Ra4 can be met with 15 Nc4.

15 Bd3 Ra4 16 Nc4 Ba6 17 Bc3?

The engine gives 17. Rd1 d6 18. Ne2 Bxc4 19. Bxc4 Qxb2 20. Qd3 Qc2 21. Qxb3 Qxc4 and I am still 3 points up.

17...BxB 18 bc BxN 19 Qe5 d6 20 QxR+ Kc7 21 Qxh7?

The engine gives 21. Rd1 Bxd3 22. Rxd3 Re4+ 23. Re3 Rxe3+ 24. fxe3 Qxg2 25. Qxh7 Qxh1 26. Qxe7+ Nd7=.

21... Bxd3 22. Qxe7+ Nd7 23. Rd1 Re4+ 24. Qxe4 Bxe4 25. Ne2 Bc2 26. Rc1 b2 White resigns 0-1

Wednesday, March 15, 2017

George Will at his Best

1.  On prayer in schools.  In 1982 then-President Reagan proposed a constitutional amendment allowing school prayer. Will is at his best as he argues against this.

Will correctly points out that "the issue is not really voluntary prayers for individuals. The issue is organized prayers for groups of pupils subject to compulsory school attendance laws". He quotes favorably from Senator Jack Danforth, an ordained Episcopal priest, who says that "a lowest -common-denominator prayer would offend all devout persons. Prayer that is so general and so diluted as not to offend those of most faiths is not prayer at all. True prayer is robust prayer. It is bold prayer."

Will correctly argues that school prayer cannot be truly "voluntary". He endorses Danforth's distinction, which is that "The term 'voluntary prayer' shall not include any prayer composed, prescribed, directed, supervised, or organized by an official or employee of a state or local agency, including public school principals and teachers".

But in a later column, Will derides the ACLU for challenging a law which provides for a one-minute period of silence at the start of each day. Again, Will is correct in making this distinction.

2.  On Term Limits.  In a 1990 column, Will explains why term limits is such a bad idea. Basically, what you are doing with term limits is throwing away expertise. There is no justification for this.

Will says that "Limits on terms would inded prune much deadwood, but also would chop down the tall cotton: all great careers are long."  He goes on to say that "Forcing out veteran legislators would increase the power of the 'permanent government'--congressional staff, executive bureaucracies."

Term limits is an idea like a constitutional balanced budget amendment--mandating something which can be done if people want it down, and not done if people don't. Democracy is the best resource to preserve good government, not artificial restrictions.

3.  On Baseball.  Will is at his best whenever he writes about baseball. In a column on 10/13/83, he gives one of  my favorite quotes: "It is said that baseball is 'only a game'. Yes, and the Grand Canyon is only a hole in Arizona".  Another quote of his that I like is that "baseball is only dull to dull minds".

Friday, March 10, 2017

George Will at His Worst

Despite my liberal leanings, I have always enjoyed the great writing of George Will. The man can really turn a phrase, which usually includes a mind-boggling metaphor or two.

In re-reading his books "The Morning After" and "Suddenly", which include his columns from the 1981-1990 time period, I decided to take a special look at columns of Will at his worst, at this best, and at his most thought-provoking. This post will deal with Will at his worst.

1. Abortion.  Will is at his absolute worst when he writes (harangues) about abortion. He is unable to comprehend that there might be a legitimate point of view different from his own.

In a column dated 11/5/81, Will insists, with no evidence whatsoever, that a fetus can feel pain. In another column dated 2/13/89, Will declares that "the indisputable fact is that a fetus is alive and biologically human". Again, Will does not explain why "indisputable" is correct here. It would be more accurate to say that the issue of when life begins is, and always will be, in dispute, and many religious traditions say life begins when the baby takes his first breath on his own, outside the womb.

In another column dated 6/19/83, Will goes on a long diatribe against abortion, calling it "The Court's Intellectual Scandal". Will cites instances where the law treats the fetus as a person for some purposes, as in the conviction of a defendant for murder for shooting a pregnant woman who then lost her baby. Will asks "how can anyone 'murder' something the Supreme Court says is only 'potentially' human?"

In another case, a pregnant woman was placed under court supervision to prevent her from damaging her fetus with her drug use.

Will asks, how can the fetus be a "person" for some purposes and not for others? What Will fails to understand, or fails to mention if he does understand, is that the two situations are fundamentally different. If the  baby is gong to be carried to term and delivered, then acts one does to cause injury to that future baby can be actionable. But if the fetus is going to be aborted, that is a different situation. For example, if a woman on her way to get an abortion were to cause an accident and miscarry as a result, the same culpability wouldn't apply as it would if no abortion was being planned. Will, who is usually so good at making intelligent distinctions, completely losses his ability to do so when the subject is abortion.

Will returns to the abortion issue in several columns in the late 1980s. He insists it should be a matter for the state legislatures, not the courts. What he overlooks here is that the courts, under our system, have the duty to protect minorities against the tyranny of the majority. A woman who is denied the ability to get an abortion is a member of a minority who would be oppressed by a (usually male) majority were a state to ban all abortions, as no doubt many would if Roe v. Wade were to be overturned.

In another column Will compares the issue of abortion to the issue of slavery. This is so nonsensical that no comment on my part should be necessary.

2. The Robert Bork Nomination.  Will really made himself look silly in his long quest to convince us that Robert Bork would have made a good Supreme Court justice. His long crusade on Bork's behalf started in July of 1987, and didn't end until December of 1989!

In his opening salvo, on 7/2/87, Will ends with the prediction that "the confirmation process is going to be easy". Has there ever been a worse prediction? Will shows how out of touch he is with people of normal sensibilities.

A month later Will asserts that "Bork is the most intellectually distinguished nominee since Felix Frankfurter".  He goes on to complain that committee chairman Joe Biden was allowing 71 days to pass between the nomination and the start of the hearings. Merrick Garland must be jealous of the relatively prompt attention given to Bork's nomination. Garland was nominated a year ago this month by Obama to be the newest Supreme Court justice, and was never even given a hearing by the Republicans!

Will's employer, The Washington Post, finally ran a long and thoughtful editorial explaining why Will was wrong about the merits of the Bork nomination. While granting Will's point that the process had been unfair, and that Bork was prejudged based on pressure from special-interest groups, the Post hit the nail squarely on the head by explaining what was wrong with Bork, when it said that "Judge Bork has retained from his academic days an almost frightening detachment from, not to say indifference toward, the real-world consequences of his views; he plays with ideas, seeks tidiness, and in the process does not seem to care who is crushed."

The Post went on to say that "What people like ourselves needed when confronted with this impression....was a simple assurance that, in addition to the forensic brilliance, the personal integrity and care for the law, Robert Bork's moral sensibility could be engaged with the questions on which he had pronounced so forcefully, that in these great cases that were to have so profound and intimate an effect on people's lives, he has a feeling for justice, not just for the law. They are not always the same."

This captures perfectly the feeling I got from watching Bork testify at those hearings. A colder, more aloof, more emotionally detached individual cannot be imagined. It seemed he had no social skills at all, no ability to connect with other human beings. He was like a teacher who is academically brilliant, but is unable to connect on a personal level with his students. That type of person does not make a good teacher, and neither can he make a good judge.

Will, not content to let the matter drop even after having been so clearly refuted, answered back with another harangue against Bork's detractors, which now included his employer. And after the Senate vote against Bork, he responded yet again with a diatribe against some of the reasons given by Senators for voting against Bork. Mind you, this is the George Will who celebrated "popular sovereignty" as the reason to support Bork; i.e., Bork favors deferring to the elected representatives of the people. Well, here, Mr. Will, is popular sovereignty at work. Don't Senators have the right, in their capacity of advise and consent, to use their best judgment in assessing which way to vote on a Supreme Court nomination? So what if they cannot articulate their reasons to your satisfaction, they are still entitled to vote their consciences.

But then the kicker came on 12/4/89, when Will again harped on the issue after Bork had published his book "The Tempting of America", explaining his views. Will refers the reader to pages 301-305, where a portion of the hearing transcript can be found, supposedly showing the ineptitude of a Senate questioner (Senator Specter). Since I have the book in my personal library, I looked this passage up; the most accurate appraisal of the passage is that both Specter and Bork were talking past each other. Bork had five days to explain his views to the Senate committee, and the fact that he was unable to do so reflects poorly on him, not the Senators. Indeed, if the allegations against him were as blatantly false as Will insists they were, it should have been an easy matter for Bork to simply correct the record, and clear up the confusion.

3.  The Cold War.  Will was an extremely militaristic cold war warrior. He consistently advocated for greater U.S. military action around the world against anything perceived to be Communist. He ranted against what he saw as a false "moral equivalency" between the U.S. and the Soviet Union. In other words, actions which we would condemn if done by the Soviets, were OK if done by the U.S., because we're the good guys.

Getting down to specifics, Will puts forth his own brand of revisionist history when he challenges the prevailing view that the 1947 Berlin airlift was a success. Will says the allies should have used military force to enforce its rights, instead of relying on the airlift. Will says that the West's "material strength was substantially nullified by its weakness of will". He speculates that the later Communist aggression in Korea and Vietnam might have been avoided had the West shown more willingness to use its superior military force in 1947.

Then in 1961 the U.S. acquiesced in the Berlin Wall built by the Soviets. Will says the U.S. should have "swept aside the barbed wire". The end result of tolerating the wall was that "we taught the Soviet Union to have contempt for our resolve". Will speculates that had we shown more resolve, the Soviets might not have put missiles in Cuba the following year.

Concerning that 1962 Cuban missile crisis, Will condemns our government for entering into an agreement with the Soviets which was limited to removal of the missiles; Will says this agreement "left Cuba free to serve Soviet military aims in many ways".

His views on Vietnam follow the same dreary pattern. He thinks that the U.S. "had the war won in September, 1967, and then renounced victory".

Will was an enthusiastic supporter of Ronald Reagan's 1983 invasion of Grenada, which he says did "more than the MX will do to make U.S. power credible and peace secure". He scoffs at the ideas advanced by the administration in support of the invasion, these being that there were Americans on the island that needed rescuing, and that Caribbean countries had urged us to act. Will says that "even if there had not been a single American on Grenada, and even if every nation in the world disapproved, an invasion to overturn an indecent regime would have been justified by the security needs of our decent society." This utter contempt for world opinion is alarming.

Will is contemptuous of the very notion of international law. He claims that "international law, such as it is, is an intramural code, useful among nations that share common values but not germane to dealings with totalitarian or gangster regimes."

The Russia-phobic mentality fostered by Will continues today, with the over-the-top hysteria over Russia's interference in our recent election. Here again, many have lost their moral compasses, as Will did during the Cold War. The fact is that our own CIA has interfered in the internal affairs of literally dozens of other sovereign countries. And interfering in other countries' elections is the least of our sins. We have bankrolled insurgencies, and worked to assassinate foreign leaders. In light of this deplorable background, how can we be so outraged at Russia's interference?

Some concluding observations.
An analysis of the three areas discussed above show that in these areas Will has abandoned his conservative principles, principles which in other areas he enunciates very clearly and persuasively. Conservative philosophy holds that the best government is one that interferes least in the daily life of its citizens. And yet, in the case of abortion Will advocates the government dictating to women what their private reproductive decisions should be. This is a total rejection of basic conservative principles.

In the case of the Bork nomination, Will rejects the principle of popular sovereignty which he claims to advocate. It's not that there's anything wrong with Will disagreeing with the decision made by the Senate to reject Bork. But what is wrong is the way that he impugns the motives of Senators, pokes fun at their reasons for voting as they did, and picks apart their reasoning like a schoolyard bully.

In the case of the Cold War, Will buys into a notion that he usually rejects, which is the efficacy of government to effect change. After the fall of the Soviet Union, Will is all for the idea that it died of the weight of its own inefficiency and heavy-handed governmental control of its economy. And yet, before the fall Will was adamant that we needed to be "tougher" to control Soviet aggression. The fact is that the people of Afghanistan probably did more to cause the Soviets downfall than anybody, when they bravely resisted the invading Soviets and finally forced them to retreat.

3/29/17 update.  I recently read "Battle for Justice: How the Bork Nomination Shook America", by Ethan Bronner. Bronner reveals that Will and Bork were close personal friends, a fact which Will never reveals in his many columns on Bork, and which also helps explain Will's over-the-top defense of Bork.

Bronner goes into great detail on the hearings. He describes how deferential chairman Biden was to Bork, giving Bork every opportunity to explain his views. He describes how the Republican pro-Bork Senators would serve up friendly, softball questions to Bork to get him to expound positively on his views, and Bork would fumble the ball every time. Often the Senator asking the question would then have to go on to provide the answer, following Bork's failure to do so. All in all, Bork's performance was a complete disaster, as shown by the fact that before the hearing, the country was evenly split on Bork, but afterwards, the negative opinions outnumbered the positive ones by 10%.

At times during the hearing Bork would sometimes try to rebrand his views as middle-of-the-road, only to retract his retraction later when challenged. His waffling got so frustrating for his supporters that some even began questioning why they were supporting this guy if he wasn't really a conservative!

Bronner documents how in the 19th century Supreme Court nominees were rejected one out of four times, and the idea that a president deserved to have his nominees rubber-stamped is a 20th-century development, and one which was properly rejected in the Bork nomination process.

Bronner mentions an interesting argument not often made regarding original intent. The argument is that if the Founders intended for future generations to rely on "original intent", they would have provided a transcript on their deliberations. No such transcript exists; in fact, less than 10% of the deliberations of the Constitutional Convention are preserved for posterity.

Bronner does not gloss over the unfair tactics of some of the Bork opponents, but points out that in the end the excesses are not what led to his defeat. For example, a survey taken after the negative confirmation vote showed that none of the electorate based their objections to Bork on the insinuation that Bork supported sterilization of women (in contrast to the 1988 presidential election the following year, when many in the electorate voted against Dukakis because of the despicable Willie Horton ads accusing Dukakis of being soft on crime).

All in all, the Bork defeat was a positive sign for our democracy, showing that the Senate could still function as the Founders intended for it to function. And my conviction that Will was completely off-base is even stronger now than it was in my original writing.

Bork's view is that the Constitution only grants the people such liberties as are specifically spelled out in the document. The contrasting view is that it really works the other way around; i.e., the Constitution is based on the idea that "We the People" are supreme, and government has only those powers which we the people have granted to it under the Constitution.  Certainly the latter view is correct, otherwise the Ninth Amendment means nothing. Considering how important this distinction is, it certainly is the proper role of the Senate to closely scrutinize prospective Supreme Court nominees to determine whether the nominee understands the distinction, as was done with Bork.

What is crystal clear today is that the political views of the Supreme Court nominees are hugely relevant. The assertion by John Roberts in his confirmation hearings that a Judge is like an umpire, simply calling balls and strikes, is patently false, at least when it comes to Supreme Court justices, whose job is to say what the law is. The idea might have been plausible in the past, but since the horrendously political decision in the 2000 case of Bush v. Gore, noone can any longer say with a straight face that the Supreme Court is not a political body. It follows, then, that the Senate must scrutinize closely the nominees, and it follows from that that George Will is way off-base in his position, which he is now repeating in his commentary on the Gorsuch nomination.

Wednesday, March 1, 2017

"The Nine", by Jeffrey Toobin

Like Greenburg's book "Supreme Conflict", Toobin's book "The Nine: Inside the Secret World of the Supreme Court", also came out in 2007, and many of the same anecdotes can be found in both, sometimes word-for-word the same. However, Toobin's book concentrates less on the nomination and confirmation process, and more on the actual functioning of the court. Also, it covers a smaller time period, ending at the same time but only starting in 1991 with the appointment by Bush, Sr. of Souter and Thomas. Toobin uses his top-notch legal analysis skills to craft an extremely informative account of this 1991-2007 time period.

This period roughly corresponds to what is called "The Rehnquist Court", which actually ran from Rehnquist's elevation to Chief Justice in 1986 to his death in 2005. The last 11 years of the Rehnquist Court represent the longest tenure of an unchanging nine-member court in U.S. history, so the evolution of the court during this time period reflects the evolution of the justices themselves, rather than any change in personnel.

The 1992 case of Planned Parenthood v. Casey presented the issue of the legality of a number of restrictions on abortion which Pennsylvania had enacted. Chief Justice Rehnquist tried to keep it off the court's docket so as not to interfere with the 1992 election (if Roe v. Wade were overturned, he feared a backlash against Republicans at the polls). However, Justice Stevens threatened to write a dissenting opinion on Rehnquist's decision to "relist" the case, something which had never been done before, and in the face of that threat Rehnquist backed down. The case was then heard on April 22nd, the final day to have the case decided before election day.

The litigants presented the question as an either/or proposition--either the court throws out the Pa. law, or the court overrules Roe v. Wade. However, O'Connor, Kennedy and Souter wanted to find a middle ground between these two extremes. At the court's conference, four justices were for overruling Roe--Rehnquist, White, Scalia and Thomas.  Stevens and Blackmun wanted to strike down the Pa. restrictions. The other three wanted to uphold most of the restrictions, so there was a tenuous seven-justice majority. Rehnquist assigned the opinion to himself, intending to write an opinion that allowed states a free hand in regulating abortion; i.e., he would overturn Roe, but not explicitly say so.

The three moderates started communicating with each other and ended up writing their own opinion. In particular, Toobin says that O'Connor "was appalled by the provision of the Pennsylvania law that required married woman who were seeking abortions to inform their husbands....She saw this provision as paternalism at best and sexism at worst". In the end, the moderate view held the balance of power, and O'Connor's "undue burden" test became the law of the land; i.e., state regulations which imposed an "undue burden" on a woman's right to abort a nonviable fetus were not permissible.

O'Connor's view was based on a strong concern for women's rights. She wrote that "Women do not lose their constitutionally protected liberty when they marry". She observed that women "may have good reasons for not wishing to inform their husbands of their decision to obtain an abortion...We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases."

The next significant step in the story is the appointment of two new justices by President Clinton, who had of course prevailed in the 1992 election, and Justices Ginsburg and Breyer joined the court. The first case Toobin discusses under this new court is one which arose under the Gun-Free School Zones Act of 1990, which prohibited the possession of a gun at or near a school. The problem with this law was that it was a federal law, passed under the commerce clause. The court used the opportunity to strike down a law based on the commerce clause, the first time since 1935 that the court had done so. The three conservatives were joined by O'Connor and Kennedy, while Breyer wrote a vigorous dissent in this 5-4 decision.

Next there follows a number of cases involving the first amendment. Attorney Jay Sekulow took on these cases with the support of a conservative organization, and he had great success in presenting them as free speech issues instead of freedom of religion issues. For example, the case of a Jews for Jesus group which was banned from distributing literature at an airport came before the court, and resulted in a 9-0 decision for the religious group.

Sekulow's winning streak finally ran out in a case involving prayer at a high school football game. The court ruled 6-3 against the high school, with the three conservatives of course dissenting. Sekulow's argument that the prayers were merely "private speech" was roundly rejected. The principle put forth by the majority was that "the government had to allow genuinely private religious activity, but at the same time could not sponsor or endorse such rituals".

The next case of significance was the decision in the Paula ones case against President Clinton. Clinton wanted to postpone the lawsuit till after his presidency, but the court ruled unanimously against him. Toobin writes that "Steven's opinion for the court in Clinton v. Jones reflected the commendable principle that no man should be above the law, but it showed a stunning naivete about contemporary law and politics." (emphasis added) This bad decision led directly to the impeachment proceeding against President Clinton, which was a horrible stain on the body politic.

But the real black eye for the court came in the Bush v. Gore case on the 2000 election. This was such a horrendous decision that it is doubtful whether the court will ever recover the esteem it once had. It revealed the court's members as nothing but partisan hacks. Toobin says the problem with Kennedy's majority opinion was that "no court, much less the Supreme Court, had ever before imposed any kind of constitutional rule of uniformity in the counting of ballots. Most states, including Florida, used different voting technologies in a single election." Toobin goes on to point out that "A recount would have been more accurate than the certified total. The court's opinion preserved and endorsed a less fair, and less accurate, count of the votes."

Toobin writes that "The tragedy of the court's performance in the election of 2000 was not that it led to Bush's victory but the inept and unsavory manner with which the justices exercised their power....Alone among the justices, Stevens was consistent and logical and constitutionally sound in his thinking." The backlash over the court's pitiful decision in Bush v. Gore caused great consternation for the centrist judges. Toobin says that "Souter was shattered", and considered quitting the court.

Toobin writes that in the years between Bush v. Gore and his death, Rehnquist became a "tired, old man who had grown cynical about the work of the court". Toobin says Rehnquist stopped writing opinions because "he didn't think the opinions mattered very much". He says that "Since Bush v. Gore, the chief had failed to command a majority in virtually all the important issues before the court."

A major development during the early 2000s was the influence on the court of foreign law. Justice Kennedy had taken to teaching in the summer at the University of Salzburg, in Austria. There he became exposed to his colleagues from other countries all around the world, and it opened his eyes to oddities in how the U.S. Supreme Court viewed certain issues, such as homosexuality and the death penalty. Similarly, Justice Breyer, who is married to an English woman, also took a worldwide perspective on issues. This contributed to liberalizing the views of these two justices, and consequently the court as a whole.

For example, in the 2003 case of Lawrence v. Texas, the court, by a 6-3 vote, struck down laws against gay sex, overturning a precedent from only 17 years earlier. In his decision, Kennedy referred to a European Court of Human Rights decision which struck down laws against gay sex under the European Convention of Human Rights. Scalia replied with a typically caustic dissent.

But Toobin writes that it was actually Breyer who was "the first justice in modern times to invoke foreign law as an aid to interpreting the American constitution". Dissenting in a 1999 death penalty case, Breyer quoted legal opinions from Jamaica, India, Zimbabwe, and the European Court of Human Rights, prompting Justice Thomas to declare that the Supreme Court should never "impose foreign moods, fads, or fashions upon Americans".

In the early 2000s, the court made a series of decisions limiting the use of the death penalty, with heavy reliance on foreign law in determining what punishment was "unusual" under the Eighth Amendment. One case involved execution of the mentally retarded, and another execution of offenders who were minors at the time of their offense.

Another development, which contributed to Justice O'Connor's growing disillusionment with her Republican party, was the threat to civil liberties in the wake of the 9/11 terrorist attacks. In two cases, Rasul and Hamdi, the court ruled 6-3 that the Guantanamo detainees had the right to challenge their incarceration in a U.S. district court, dealing the Bush administration a huge setback.

So what we have, then, is a situation in which the court's moderates have prevailed over the two extremes. This seems odd to us only because the country itself seems to be so polarized between the two extremes. In reality, I think a lot of this seeming polarization is a result of the middle being relatively silent compared to the energized partisans on either extreme. On the Supreme Court, however, the middle speaks loud and clear, and usually carries the day.

Since the time period covered in the Greenburg and Toobin books, George W. Bush has appointed two conservative justices, and Barack Obama has countered with two liberal justices. As might be expected, the dominance of the middle continues unabated.When I did a detailed analysis of ten significant cases decided in 2013, I found that there were three reliable liberals--the three women; three reliable conservatives--Scalia, Alito, and Thomas; and three in the middle--Breyer, who tended to vote with the liberals, Roberts, who tended to vote with the conservatives, and then Kennedy, who was pretty much right in the middle. If Gorsuch is confirmed to replace Scalia, the balance of power will surely remain as it was before Scalia's death. The danger for liberals is not with this current group, but rather that the old liberals on the court will die or retire during the current administration, giving Trump the chance to appoint more conservatives.