IT'S CHRISTMAS IN NEW YORK AGAIN

IT'S CHRISTMAS IN NEW YORK AGAIN

I heard it for the first time two months after the fact.

At a dinner with the Friendly Sons of St. Patrick.

I have listened to it every year since.

At Christmas.

The "it" is an Irish ballad -- "Christmas in New York" --  written and sung by a band from Yonkers, NY called Shilelagh Law.    

         There's snow in the air
         Winter is here
         The wind is blowing
         And outside's so clear
         There's presents to wrap
         And cards to send
         It's Christmas in New York again  

              

We Irish have a love affair with music.  We all think we can sing. Even those of us who can't.  With a little fuel, caution is generally thrown to the wind and whole groups of party-goers belt out their favorites.  In the old days, that meant "Whiskey in the Jar," "The Irish Rover," and -- of course -- "Danny Boy."  Nowadays, the Beatles, Shania Twain and Cold Play make the cut.  If you actually can sing, watch out.  My grandparents routinely returned from their Saturday night revelries only to wake their youngest daughter to sing for their fellow travelers. Which is how my mom became our family's best public singer.

         There's somebody singing a holiday song
         You pick up the tune and start singing along
         You learned the words some time way back when
         It's Christmas in New York again                

Irish music can be sentimental. And angry. Just like the Irish. Shilelagh Law sugar coats that just a bit when the band talks about itself.  They don't say they reflect anger.  Instead, they say they "reflect a collision of two cultures that results in bedlam."  The two cultures are New York and Ireland.  The band asserts it "embodies all that is New York Irish music," including "dancing, weeping, lots of laughter, plenty of drinks, and the inevitable visit to the local diner at 5 am."  OK,  fine, but I still think lots of those 5 am diners show up a little pissed -- at least at something.

            Fancy store windows and millions of lights

            Downtown in December, what a fabulous sight

            You spin round and round trying to take it all in

            It's Christmas in New York again

One of the fundamental facts about alcohol  is that it is a depressant. I always marvel at the drinkers (or drunks) who tell me they are depressed.  What did they think they would be?   Of course, even a blind squirrel finds the occasional nut.  Sometimes things are depressing and sadness is more than appropriate, aided or not  by a side of Jameson's.

             But as you gather round the table with everyone

             You feel that something has been left undone

             The tree is all trimmed, the shopping is through

             But there's one last thing you still have to do

New York -- my home -- has had a very bad December.  First a grand jury refused to indict anyone for what the City's medical examiner concluded was the homicide of Eric Garner, forcing thousands of my neighbors to the streets in protest against the lack of accountability on the part of those who enforce the law but seem to be able to get away with breaking it. Then, last weekend, an EDP -- that's cop speak for "emotionally disturbed person" -- traveled from Maryland to Brooklyn and gunned down two cops sitting in their police cruiser. He had previously shot his girlfriend in Maryland and instagrammed that his imminent dual homicide would be payback for the Garner travesty in New York and the Brown case in Missouri.

          It's Christmas Eve, 11 pm

          You walk down to the church and you quietly go in

          You kneel down in the last pew right on the aisle

          And say "God I know that it's been awhile

          But can you do me a favor on this Christmas Eve

          Can you send out some blessings to people for me

          You know these last few months have been kinda tough

          And we could use a little love"

The two police officers were Wejian Liu and Rafael Ramos.  Officer Liu, married only two months ago, was a seven year veteran. Officer Ramos was on the force for two years and, at 38, had become a new cop at a relatively old age in a second act of personal service. He was also about to become a chaplain.   A father of two, he is now dead at 40.  The two were working overtime as part of an anti-terrorism drill in the Bedford-Stuyvesant neighborhood in Brooklyn.  Observers say the EDP approached their car, assumed a shooting stance, and then opened fire.  The officers never had a chance.  NYC's Police Commissioner correctly called it an "assassination."  Mayor DiBlasio said it was "a despicable act."  

            So bless New York's finest, our angels in blue

            Giving us hope and helping us through

            And bless New York's bravest, the FDNY

            Giving their sweat and their tears and their lives

Many were just angry and took that anger out on the wrong people. The head of the City's Patrolmen's Benevolent Association (PBA), Patrick Lynch, blamed the Mayor for the killings, claiming that DiBlasio's support for Garner and past criticism of police meant that he had "blood on his hands"  Even Rudy Guiliani thought that comment over the top, calling it "incendiary" and "inappropriate." It actually was a lot worse than that.  I am the god-son of a New York police officer who never lived to see me become an Assistant US Attorney.  I come from a family of cops.  You can be pro-civil rights and pro-police at the same time.  The two are not remotely contradictory.  The vast majority of police fully respect the rights of those whom they police; in fact, a small minority of their fellow officers account for the vast majority of brutality or abuse. There is no need for Lynch or anyone else to claim that any protesters or politicians are responsible for the killings of Liu and Ramos because the claim is as false as it is divisive.  

               And bless all the medics and our troops overseas

               Bless the guys in the hardhats, removing debris

               Bless the everyday people who answered the call

               Bless those who gave some and those who gave all

Officers Liu and Ramos gave all.   Unfortunately, so did Eric Garner. The rest of us -- the "everyday people" -- have to answer the call. It's a call that respects the police.  But it's also a call that respects the Constitution. More than two centuries ago, before there was either a Constitution or a Revolution, John Adams, a Massachusetts lawyer, defended both. He was the defense attorney who successfully defended six of the eight British soldiers charged with manslaughter in the wake of shootings of protesters who themselves had attacked the soldiers.  Bill DiBlasio is not anti-cop. He has given the police department all the resources it has requested, and his Police Commissioner, William Bratton, has praised him for this.  Lynch's outlandish comments, moreover, are only his latest effort to drive a wedge between the cops and the Mayor. Earlier, he encouraged officers to sign letters requesting that the Mayor not be at their funerals if they were killed in the line of duty.  Liu and Ramos did not do so,and Officer Ramos's family has welcomed the Mayor to Ramos's funeral.

                   Bless all the souls who left us this year

                   You may be gone but you'll always be here

                   Singing and dancing with family and friends

                   It's Christmas in New York Again.

WHY NOT READ IT

WHY NOT READ IT

For the better part of two days now, I have been bombarded by media accounts of and non-stop comment on the Senate Select Committee on Intelligence's Study of the CIA's Detention and Interrogation Program. 

The Study itself, which runs to more than 6,700 pages, is still classified.  On Tuesday, however, the Committee released a Forward to the Study written by the Committee's present chair, California Sen. Dianne Feinstein, the Study's Findings and Conclusions, and the Executive Summary of the Study. That Executive Summary alone is 499 pages.

In a nutshell, the Study concludes that (1) the CIA engaged in torture, (2) the program didn't work, and (3) the CIA repeatedly lied about the program to Congress, the Department of Justice (DOJ), the media and the public.  The word "nutshell" should be taken literally.  The 499 page Executive Summary contains 2552 footnotes and is based, as apparently is the full 6,700 page report, almost exclusively on CIA documents and other public records. Those documents, moreover, include voluminous memoranda, testimony,  emails and reports from the actual on ground participants in the program on up to the various directors of the CIA.  The report, though written by staffers employed by the Democratic majority on the Intelligence Committee, is also bi-partisan in its criticism -- it lambastes Obama's appointed CIA directors as thoroughly as it lambastes Bush's.

Following publication of the Executive Summary, the push back has been intense and emotional. Appearing on Fox News, former Vice President Cheney called the report "a bunch of crap," and this morning, former Congressman Joe Scarborough said the same thing on his "Morning Joe" program on MSNBC.  Yesterday, three former directors of the CIA -- George J. Tenet, Porter J. Goss and Michael V. Hayden -- along with two former deputy directors -- John E. McLaughlin and Albert M. Calland -- penned an op-ed in the Wall Street Journal skewering the Committee for not having spoken to them and stating, point blank, that the CIA program was effective and "deemed . . .legal".

Cheney and Scarborough admit that they have not read the report and it is not clear whether the former directors and deputy directors have either.  In their Wall Street Journal  piece,  Tenet et al. make a number of claims that the Executive Summary refutes in detail.  In discussing specifics, for example, they assert that "The CIA never would have focused on the individual who turned out to be bin Laden's personal courier without the detention and interrogation program"; that "Once they became compliant due to the interrogation program, both Abu Zubaydah [a senior al Qaeda operative] and KSM [Khalid Sheik Mohammed, the mastermind of the 9/11 attack] turned out to be invaluable sources on the al Qaeda organization"; and that the program disrupted and prevented other "mass casualty attacks" in the wake of 9/11, including a "second wave" attack planned against the US west coast.

None of these claims, however, are accurate.  In fact, they are refuted by the CIA's own records.

The Zubaydah/KSM and bin Laden courier claims are instructive. In the case of the first, as the Senate report makes clear, Zubaydah had provided actionable intelligence under questioning by the FBI and others long before he was detained by the CIA and subject to torture, and KSM, who was tortured from the point at which he was captured, provided information that more often than not was false. More to the point,  the CIA actually concluded during its interrogations that it was not obtaining useful information from KSM by water boarding him.  As to the courier, the report makes clear that he was identified long before any tortured detainees pointed the finger at him,  that the most accurate information on the courier came from a detainee who had not been tortured, and that the CIA knew -- again from untainted sources -- of the courier's closeness to and intimate involvement with bin Laden. Finally, as to any success in stopping other attacks, the Senate report contains a detailed examination of the CIA's twenty most repeated "success" claims, including disruption of the second wave west coast attack.  It explains that, in each of those specific cases, the CIA's "enhanced interrogation" (it's euphemism for torture) program did not create the success or disrupt any plot. In particular, the second wave attack cited by Tenet et al. was disrupted upon the arrest of a plotter and information obtained from him without any resort to torture.  

The complaint that the directors and deputy directors were not consulted in advance of the Senate report, while technically true, is also more than strained.  The Executive Summary is based almost entirely on contemporaneous CIA documents, and the views of the directors and deputy directors -- especially those of Gen. Hayden -- were available from those documents and their own public testimony, and are repeatedly cited and quoted in the Senate report. To claim, therefore, as Cheney and Scarborough have, that the report didn't consider the "other side of the story" -- or the views of the principals --  is  false.  In fact, the Senate report is for the most part simply a report of the findings of the CIA itself.  In other words, the report is based on "their" side of the story as it was told (and memorialized in emails and memos) at the time by the operatives and analysts on the ground and at CIA headquarters in Langley, Virginia.

The Senate report contains similar detail -- including accounts of evidence destruction -- in support of its claim that the CIA misled Congress and the public on the scope and success of its torture program, as well as information that it even misled the Department of Justice and the executive branch.  All of this is dismissed with a wave of the hand by Tenet et al., who instead insist that the DOJ "deemed" the CIA program legal. 

The last claim is more or less true.  What DOJ did was authorize limited use of torture in specific cases.

It is also true, however, that the CIA in effect "jobbed" DOJ.  As the Senate report makes clear, again based on the CIA's own documents, the agency misrepresented what it was getting absent torture, the number of its detainees, the significance of some of the detainees, the extent of the torture it was planning and then performed (including the use of "rectal infusions"), the medical conditions of those subjected to torture, and the physical/medical effects of the torture. The CIA even misrepresented Sen. McCain's position to DOJ, asserting that McCain had approved of the techniques for which it was seeking approval when he manifestly had not. None of this, of course, covers DOJ in glory; torture and the techniques the CIA classified as enhanced interrogations and disclosed to DOJ, has and have long been illegal.  The US itself prosecuted the Japanese for water boarding prisoners during World War II, and long before DOJ's lawyers got hold of the CIA's post 9/11 requests, there really was no debate on what constituted torture. 

Knowing John McCain's position, moreover, does not require a CIA briefing. 

The point here, however, is that the CIA's defenders -- including the ex-directors, ex-deputy directors, Cheney and Scarborough -- keep insisting that criticism of the agency is being undertaken without any appreciation of the "context" in which the CIA had to make these decisions, including fear of imminent additional attacks in the wake of 9/11, when the record discloses that the CIA itself did not even accurately describe that context to the overseers at DOJ from whom it was seeking some sort of legal cover.  

This is critical.  We depend on our leaders and on our agencies to get it right in times of crisis.  The easiest "ask" in the wake of 9/11 was the ask for torture.  No American would have cared if any al Qaeda operative had then been tortured to death.  Many will not care even today.   That we should ought not be used to disguise the fact that we won't and don't.  Law, therefore, exists precisely to save us from ourselves.  The fact that the US engaged in torture is tragic.  The fact that it did not have to do so is, perhaps, even more so.  And now, the fact that we cannot have a rational conversation about what occurred  -- that a former Vice President and a former Congressman call a voluminous report, based on contemporary documents making almost indisputable claims given the mountain of evidence amassed and discussed, "crap" without having even read it -- is perhaps the most tragic.

Because we will just repeat these mistakes in the wake of some future crisis.

Even though we should not, and even though we will not have to.

How can we stop this?

Here is a modest proposal.  

Before anyone talks about the Senate Select Committee's Study of the CIA's Detention and Interrogation Program, including the Committee's just published Executive Summary, he or she . . .

Should read it.

"I CAN'T BREATHE"

"I CAN'T BREATHE"

If a picture's worth a thousand words, how come this one didn't convince twenty-three grand jurors?

That is the question being asked in New York City and throughout the country today in the wake of a grand jury's failure to indict Officer Daniel Panteleo in connection with the death of Eric Garner last summer.

All of us have seen the video of the encounter.  In it, one uniformed officer -- not Panteleo --  is standing in front and to the left of an obviously irate Garner, who repeatedly complains that he has been and is being  being harassed. Garner and the officer obviously know each other.  Garner excitedly tells the officer that "It stops today" and that he "did not sell nothin'," apparently referring either to the policeman's claim that he was selling illegal cigarettes -- "loosies" in the parlance of the street -- at that time,  or to prior encounters where that charge was made.  When the cop appears to ask why Garner is screaming (the audio on the police officer is hard  to pick up), Garner explains that "Every time you see me, you want to harass me, you want to stop me . . . I'm minding my business officer."  He then says, "Please just leave me alone. I told you the last time, please just leave me alone."

At that point, there appears to be a break in the tape.  Then, two more officers approach Garner from his front, and Panteleo, who is dressed in street clothes -- shorts and a green jersey with the number 99 on its back -- moves toward and touches Garner from the right and behind.  Garner raises his hands and says, apparently in response to Panteleo (who Garner does not seem to think is a cop), "Please don't touch me."

Panteleo then grabs Garner by placing his left arm around Garner's neck with his right arm under Garner's right arm near the armpit. Panteleo rapidly moves backwards, more or less parallel to the store window at which Garner was standing, turns Garner around slightly and moves back toward where they all started, and then takes Garner down.  All this time Panteleo's arm remains on Garner's neck; as Garner is prone on the sidewalk, Panteleo is spread lengthwise over Garner's back and legs.

As the other officers -- three of them -- secure Garner's legs and torso against the sidewalk, Panteleo moves to his knees and Garner's head, and then compresses  Garner's head against the sidewalk with his hands.  Garner then says, "I can't breathe."  In fact, he doesn't just say he can't breathe.  He repeats the statement . . .

Seven more times.

Meanwhile, the guy with the cell phone who is taking the video of the encounter is told by still more police (by this time , two or three additional officers appear to be on the scene) to "back up".  While doing this, and continuing to video the event, the guy says "All  he did was try to break up a fight."

Shortly after repeatedly telling them he couldn't breathe,  Garner, according to a witness, "went limp."  He apparently went into cardiac arrest.  EMS arrived and took him to Richmond County Hospital, where he was pronounced dead.

As a  matter of policy, the police in New York City are prohibited from using choke holds.  The policy was inaugurated in the early '90s after there had been at least one fatality following use of the technique during an arrest.  In that case, unlike here, the police were actually indicted.  Though they were acquitted in the subsequent criminal trial, the family later prosecuted a civil rights claim against the City and the City paid a seven figure settlement.

Why no indictment here?

There really does not appear to be a credible answer.

Grand jury proceedings are secret, so we have no idea what the jurors heard or saw during the month long investigation.  The Staten Island prosecutor who presented the case to the grand jury has petitioned the court to release some of the contents of the proceeding, but it is not clear what portions -- if any -- will be made public.  Moreover,  unless everything is disclosed, any type of selective unveiling will just contribute to the already widely shared view that the police are immune from accountability.

Is that view accurate?

It is always dangerous to make assumptions or conclusions without the benefit of seeing the full record.  But in this case, all of what we do know makes it virtually impossible not to conclude that at least some law was broken and a trial should have occurred.

First, though his lawyer says that Officer Panteleo was not applying a choke hold, the video evidence refutes that claim.  The officer clearly puts his arm around Garner's neck and keeps it there until Garner is on the ground and he can move to his knees and compress Garner's head .  If, as his lawyer is claiming, Panteleo was just using an authorized take down procedure, that arm would have been nowhere near Garner's neck; instead, it would have been under Garner's left arm and around Garner's chest or near Garner's shoulders.

Second, the medical examiner who autopsied Garner concluded that the death was a homicide caused by a combination of neck and chest compression.  This in itself refutes the claim that a choke hold wasn't applied.  The ME undoubtedly saw what are known as petechial hemorrhages -- small burst blood vessels -- on Garner's larynx,  which are the common result of  fatal neck compressions.

Third, the notion that a grand jury -- as distinct from a trial on some criminal charge, even one short of intentional murder -- is or could be an appropriate vehicle for accountability in this case is itself very suspect.  I am a former federal prosecutor, and the conventional wisdom that prosecutors control grand juries is true.  The old adage that a prosecutor could get a grand jury to indict a ham sandwich if he or she wanted is founded on the reality that prosecutors -- and prosecutors alone -- decide what evidence gets presented to a grand jury.  Prosecutors also instruct grand juries on the applicable law. Consequently, their control of the process is fairly complete.  In the case of most crimes, that structure materially favors indictment.  In the case, however,  of alleged crimes perpetrated by the police, especially alleged crimes arising out of the use of force, a countervailing pressure is at work. The police and their supporters -- the various PBAs and SBAs -- are almost universally opposed to these types of claims, and prosecutors for the most part allow them to present their defenses in an unimpeded way to the grand jury, and provide the instructions needed for a "no bill" -- law speak for no indictment -- if the jurors like what they see and hear. This, moreover, is a dispensation granted no other defendants.

Fourth, the prosecutor in this case gave all the police officers on the scene -- except Panteleo -- immunity. This allowed all of them to testify without fear that they too might be indicted.  Had they not been granted immunity, their own lawyers undoubtedly would not have allowed them to testify, so defenders of the District Attorney will naturally claim that the immunity deal allowed the grand jury to get relevant evidence it otherwise would not have heard.  

Maybe so. 

The immunity deal, however, also allowed all the other officers to support Panteleo in whatever account Panteleo provided.  Without assuming the testifying cops did anything other than tell the truth, it is still hard not to assume they were at least biased in Panteleo's favor.  It is also not clear that they themselves did not violate proper procedure.  The arrest and take down in this case was not problematic and irregular simply because a choke hold was applied. The chest compression the other police applied to Garner while he was on the ground telling them he couldn't breathe -- which the Medical Examiner cited as another factor contributing to Garner's death -- itself violated policy.

Whether the arrest was irregular for other reasons is also an open question.  From the video, it just isn't clear exactly why the police were interested in Garner that day at that time.  If, as some of the backtalk suggests, they thought he was selling illegal "loosies," a charge which Garner himself vehemently denied, why did they not just give him a summons?  Was it because he was then out on bail for that same charge? If so, what evidence did they have of the crime given Garner's denial -- a denial which appears to have been true in that there were no reports of "loosies" on his person, and one which, in any case, makes perfect sense if Garner was then minding his own business and staying on the right side of the law (lots of folks on bail try to avoid committing the crimes for which they are about to be tried).  

Or was it because this is just what cops do in the era of "broken windows" policing? 

"Broken windows" policing has been around now for more than twenty years.  The theory is that arrests for small crimes -- panhandling, subway turnstile jumping, illegal graffiti -- stop criminals from moving up the ladder to bigger crimes.  Crime has gone down dramatically in New York City over the last two plus decades, so supporters of "broken windows" claim it is working.  Whether this is so, however, has been questioned by criminologists who have noted a host of other factors --   demographic in the form of an aging population (crime is a young man's game)  and penal in the form of longer prison terms  -- which might explain the result.  

Undeniably, however, "broken windows" -- along with "stop and frisk," which NYC only recently ended -- disproportionately captures minorities and people of color, and they are rightly sick and tired of that reality.  They are also rightly sick and tired of the risks they face when confronted by the police.  Whatever Eric Garner was or wasn't doing on a street in Staten Island last summer when four cops more or less surrounded him, one thing is absolutely clear.

He  should not have died for it.

That is why thousands of New Yorkers took to the City's streets last night in protest.  As they engaged in "die-ins" at Grand Central Station, protested in Times Square, and took over a portion of the West Side Highway, passers-by gave them thumbs up and shouts of approval.  The Mayor appropriately wondered about the risks his own mixed-race son faced in the current environment. And for their part, the police in New York City last night -- unlike the para-militarists  in Ferguson a few weeks ago --  managed the protests well.  As they should have, they let the protest go forward without any undue confrontations. They followed the proper procedures.  They were professional.

Too bad that wasn't the case last summer.

IT'S THE TURNOUT, STUPID

IT'S THE TURNOUT, STUPID

On Tuesday in the mid-term elections, the Republicans gained at least eight Senate and fourteen House seats. They are also likely to win the December Senatorial run-off in Louisiana (where no candidate beat the 50% threshold required to win outright on election day).  They have the largest GOP margin in the House since 1946.   They were able to win not just blood red states in the south and mid-west but also purple Colorado and Iowa, and they  protected their gubernatorial majority by picking up Massachusetts, Maryland and Illinois while defending themselves in Wisconsin and Florida.  They also won control of twenty-four state legislatures to the Democrats' fourteen; the other twelve were split.

Gallons of ink are now being spilled explaining these results.

The favorite culprits are President Obama's low approval rating, the state of the economy, and a general hatred for things governmental. On this narrative, a center-right country reclaimed its rightful control in the wake of executive fecklessness that has bloated the budget, stalled the economy and made a mess of health care.  With the Keystone pipeline unbuilt thanks to Harry Reid, and our enemies abroad untamed thanks to Barack Obama, the electorate deprived Reid of his majority (and Obama of his Presidency) on its way to re-claiming the big prize in 2016.

The only problem with this narrative is that . . .

It is false.

Start with the Senate.   All of the seats contested last Tuesday were previously filled in the 2008 election, which was a Presidential year. The eight seats lost by Democrats this year were in Montana, South Dakota, West Virginia, Arkansas, Iowa, Colorado,  North Carolina, and Alaska.  In all of them, turnout compared to 2008 was down by orders of magnitude.  Nationally in 2008, more than 50% of registered voters went to the polls, record numbers for a modern Presidential election; last Tuesday, slightly more than 36% of registered voters went to the polls.  Those that voted, moreover, were older, whiter, and less Hispanic than their 2008 counterparts.  In other words, the Democratic vote in 2008 stayed home in 2014.

Turnout aficionados are now comparing this year's electorate to 2010's, the last mid-term, and finding out that the turnout difference was about 6%.   About 42.2% of the registered electorate showed up in 2010 compared to the 36% that voted last Tuesday.   These same aficionados are also pointing out that in some of the eight states won by the GOP, to wit, North Carolina, turnout among minorities and Hispanics was at or above 2010 levels.

The problem with this approach is that it understates the Democratic vote that stayed home and creates the space for the false narratives spinmeisters at Fox are now falling in love with. Turnout is always lower in non-Presidential years. All this means, however, is that mid-terms do not provide an accurate picture of where the country stands. They therefore should not be used to fashion false trends or to confirm what are necessarily incomplete indictments.  

No doubt the Democrats would not have done as well this year as they did in 2008 given Obama's unpopularity, however undeserved, and the country's continuing economic problems, however much they are a product of Republican-led spending cuts that created a form of quasi-austerity on this side of the Atlantic.  But if the electorate this year had been as large, as young and as diverse as it was in 2008 and 2012, it is highly doubtful that Democrats would have lost eight seats, especially in view of the fact that two of them were Colorado and Iowa, neither of which is red.

On the House side, I suspect the same variables are more or less at play but will defer here to analysis by Steve Kamp, a law school classmate who has written a yet to be published tome analyzing every House race from 1788 to the present and who sent me and others some preliminary thoughts on last Tuesday's results.  Steve notes that, going into this election, Republicans held House seats in seventeen (17) districts where Obama won in 2012 and Democrats held House seats in nine (9) districts that Romney won.

On Tuesday, Democrats won back only one of those Obama districts but Republicans took back four of the nine Romney districts and won additional districts taken by the President in 2012, facts which collectively suggest that turnout was determinative.  Of course, the swing itself -- fourteen (14) seats in a body with 435 of them -- was pretty small, largely owing to the fact that the House has been so thoroughly gerrymandered that few if any races are competitive in any election years, Presidential or non.  The same, moreover, can be said for  the legislative races, where the GOP took control of only one more legislative body.

Finally, there are the gubernatorial contests.  The GOP picked up executive chambers in three Democratic states -- Massachusetts, Illinois and Maryland -- and defended what it held in Wisconsin and Florida.  These states always hold their gubernatorial elections in non-Presidential years so we'll never know what would happen if the electorate were larger, younger or more diverse.  Or put differently, in those limited elections, and for reasons  based only on the anomaly of schedule, the turnout differential doesn't matter.  

Everywhere else . . .

It does.

THE MID-TERM MORASS

THE MID-TERM MORASS

Though little has been accomplished by Congress over the last two years, the mid-terms are upon us. 

This means that anyone who is remotely politically active has been inundated by a barrage of emails from candidates, PACs and so-called independent committees far and wide seeking campaign funds. It also means that  all of us have been besieged with television ads, computer pop-ups and mailers either touting the candidates on whose behalf the missives were sent or --  much more likely -- portraying their opponents as veritable enemies of the democratic state.

The Republicans, from all accounts, are favored to add to their majority in the House of Representatives and take the Senate as well, though the latter possibility is still considered a close call.  The House remains a GOP bailiwick largely because of partisan re-districting in 2010, when they first recaptured the House.  The GOP edge in Senate contests largely results from the fact that there are more than half a dozen seats currently held by Democrats in either very red states that voted for Romney in 2012 or purple states where President Obama is anathema to large majorities. Consequently, Senators Landrieu , Hagan,  Begich and Pryor are in trouble in Louisiana, North Carolina,  Alaska and Arkansas;  open seats in South Dakota and Montana held now by Democrats will probably switch; and there is a close contest in Iowa.

Thus the horse race.

When you try to explain, however, why the horses are thus aligning,  reason takes a holiday.  

It's not that political prognisticators cannot give reasons.  They can and do.

It's that none of those reasons should be working given the current environment.

Reason number 1 is that the economy is still in the doldrums,  and this historically favors the so-called "out" Party.  The doldrums are real -- income inequality is the highest it has been in 100 years; the poverty rate has been at 15% for three years; record numbers are now on food stamps; and growth -- while positive -- is still weak and, in any case, not producing wage gains.  None of this, however, should favor Republicans.  The GOP has  supported the very policies -- tax cuts for the rich, benefit cuts for the poor and middle class, weak unions and assaults on public sector employees -- which created these conditions, and opposed any policies -- additional stimulus, the automobile bail-out, the infrastructure bank,  and the Affordable Care Act -- which helped or would have helped to alleviate them.  

Meanwhile, the right wing echo chamber at Fox beats the deficit drum and the creditor class in general continues to warn of impending inflation.  This occurs despite the fact that (1) the deficit has been coming down like a rock for the last four years (and, as a long term matter, would come down more appreciably if sufficient stimulus had been enlisted to create less than anemic economic growth) and (2) there has been little to no inflation since the financial meltdown in 2008 and the lesser Depression that followed.

Ah  . . . on the economy, it always comes back to 2008.  

Which, though more than true, is  too bad for the Democrats.

Americans have short attention spans. We refuse to dwell on the past and reject leaders who overly whine about it.  Obama's poll numbers are at a low because he has been at the helm for the last six years, and while better, things are not great.  Pointing out the reasons . . . or that Obama inherited all of these problems from Bush . . . or that the Republican Party as a whole has raised obstruction and the politics of "No"  to an art form . . . or that things would have been a lot worse had we followed their policies for the last six years . . . 

Comes too close to whining.

 Even if it is accurate.

Consequently, it looks like the GOP is getting a free pass this cycle. If Republicans win, it will be because -- and only because -- voters hold Democratic incumbents in red states and Obama in the White House responsible for the fact that things are not better.  This is not fair but, as JFK famously warned us, life is unfair. The  buyers remorse, however,  will be enormous because the GOP literally has no policies to spur growth or dampen inequality.  Tax cuts do neither in an environment where wages are flat; in fact, they create more inequality by massively improving the lot of the 1%. And wholesale attacks on public sector employees simply drive down the wages of middle class wage earners.

All of this is obvious and should matter.  

But in an age of unlimited corporate campaign spending by anonymous donors hiding behind hypocitcally named "independent" committees . . .

It doesn't.

BEYOND VICTORY

BEYOND VICTORY

So, whaddya' do -- as we said in Brooklyn all those years ago-- once you win?

I have been contemplating this question my entire life.  It has come packaged in narrow victories and narrow defeats, one-sided blowouts, and tragic mistakes, professional decisions and personal challenges.  There is no formulaic response that works. 

Thomas Jefferson once said that "Great innovations should not be forced on slender majorities."  His own victory in 1800 had come after a near-revolutionary decade long battle between Federalists embracing Alexander Hamilton's vision of a commerce driven and centrally financed new Atlantic power and Democratic-Republicans opting for Jefferson's picture of America as a forever idyllic agricultural nation of yeomen farmers on  lands stretching westward. The  election was close.   Jefferson won eight states to Adams's seven.  In fact, the only reason Jefferson won was that the Constitution's three-fifth's clause artificially inflated the populations of slave states and thus gave them more electoral votes than they otherwise would have received.

(The election was also complicated by a technical-- and later corrected -- flaw in how votes in the Electoral College were assigned to Presidential and Vice Presidential candidates.  At that time electors cast two ballots for President, after which the candidate with the most votes became President and the second most became Vice President.   In 1800, both Jefferson and his running mate, Aaron Burr, received identical votes for President in the Electoral College, even though everyone knew Jefferson had been the candidate for President.  The election was then thrown into the House of Representatives, where Burr made a play for the top job; it was decided in Jefferson's favor only after thirty-five votes in the House, and -- ironically -- Hamilton ultimately supporting Jefferson. Hamilton thought it better to elect a man, Jefferson,  with whose principles he disagreed, rather than one, Burr, who he thought had none.)

In any case, thus was born Jefferson's admonition.

Which others throughout our history have often seized upon.

President Kennedy regularly quoted Jefferson when his Administration was criticized for its  minimal to non-existent progress on civil rights.  His Presidency too had been a product of a "slender majority," a good portion of which came from southern states not remotely enamored of  civil rights.  More than forty years later, Jefferson's words were again unearthed by those arguing that Obamacare should not be passed in an an environment where the Senate was more or less evenly split.  

Kennedy temporized, at least until southern sheriffs unleashed dogs and water cannons on black kids, at which point he damned the politics and extemporaneously spoke of civil rights as a moral issue. Obama, however, didn't. He passed the Affordable Care Act with -- as Donald Rumsfeld might put it -- the majority he had, however slender.

Who was right?

Maybe both.

Jefferson himself did not have an easy time following his own advice. He did, after all,  authorize the Louisiana Purchase from Napoleon without any Congressional vote or apparent Constitutional authority, more than doubling the size of the country with a stroke of the pen and -- not coincidentally -- materially advancing his own vision of a farm-led America. Though Lincoln fought the initial years of the Civil War by, in practice, making the Jeffersonian warning  an adjunct to his lawyer-trained disposition (he famously told Horace Greeley that he'd save the Union any way he could -- by ending slavery, allowing it to continue in the states where it existed, or freeing some while others remained enslaved), he later took great risks -- to wit, the Emancipation Proclamation -- and suffered great losses -- more than 600,000 Union dead -- in the face of diminishing electoral prospects.  

Perhaps Franklin Roosevelt was the best practitioner when it comes to the Jeffersonian admonition. As he fought the Great Depression during his first and second term, he proposed and passed extraordinary innovations on the back of enormous majorities.  In the run up to World War II, however, when the country was still isolationist and his own internationalism could not be advanced merely as a function of his enduring popularity, he temporized, educating without committing as Europe erupted. Ultimately, it worked and later, in fashioning a United Nations, it worked again.

We appear now to be in a period of perpetually slender majorities.The American Congress is more or less split and will still be after this November's mid-terms, regardless of the technical outcome. Europe's austerians somehow survive in the face of adherence to a policy that has utterly failed to generate the necessary growth. Separatists movement wax and wane, the latest in Scotland where a decisive victory for continued membership in the UK carried with it the reality that 45% of the people (and a majority of the young) wanted out.There is unmitigated tribalism in the Middle East and, as a consequence, uncertain alliances whose majorities -- slender or otherwise -- cannot even be calculated. Religiously fueled divisions and hatreds, once thought to have been consigned to the dustbin of history, have made tragic comebacks. Narcissism, self-centeredness, self-aggrandizement all lobby for equal time.  Along with absolutes.

What is the answer?

I do not know.

Maybe it's not about victory . . . or policy . . . 

Maybe we need the "great innovation" that works regardless of division.

Maybe the Galilean and all those '60s hippies were right.  

Maybe what they world needs now is . . .

Love.

AUGUST 2014

AUGUST 2014

On the 100 year anniversary of the start of World War I, with children dying in the streets of Gaza and the world still blowing up at discordantly  frequent intervals, I was thumbing through a book of poems by Wilfred Owen. 

Owen was born in 1893, and though he did not lead a charmed life, it was a stable, British middle class one. He had some schooling, including university, and his family moved about among various Shropshire towns, with one longish stopover near Liverpool,  as relatives (with whom they lived) died or his dad moved from job to job.  He was an evangelical -- not High Church -- Anglican, and though he took his faith seriously, he also criticized his church for failing to do more for the poor.  According to at least one biography, he wanted to be a poet from the age of ten.

To say that Edwardian England glorified military service and patriotism at the turn of the 20th century would give understatement new meaning. At the time World War I began, however, Owen was working as a tutor in the Pyrenees in France and hardly noticed the war.  He began to notice only because his mother sent him regular clippings from The Daily Mail, at which point guilt brought him home and into the service.

Though he liked the Army, he ultimately came to hate war.

Of which he saw a lot.

He was sent to the front on December 31, 1916.  Within days, he witnessed gas attacks, the horrific stench of rotting flesh, frost bitten nights, and the constant, deafening din of  heavy gun fire. During one battle, he was literally blown into the air by a trench mortar, suffered shell shock, and had to be sent back to a psychiatric hospital in Edinburgh to recover. After being re-certified for active duty,  he voluntarily returned to the front in the fall of 1918.  In October, he won the Military Cross for seizing a German machine gun and using it to kill a large number of enemy soldiers as part of a battle he later described as "savage hand to hand combat."

He came to understand that war changed those who fought it, those who suffered through it and, most obviously, those who died in it. Of himself, and his fellow soldiers, he wrote:

          Merry it was to laugh there-

          Where death becomes absurd and life absurder.

          For power was on us as we slashed bones bare

          Not to feel sickness or remorse of murder.

In another poem, he spoke of soldiers' "senses . . . long since ironed", of their existence "among the dying unconcerned."

Nevertheless, he detested "washy pacifists." They never made a difference as far as he could tell.  So, apparently in order to make one,  to -- as he put it -- "usefully declare [his] principles" in the poetry of protest that became his voice, he returned in late 1918 to the war his injuries could have easily allowed him to avoid.

This time, however, his luck ran out.  He was killed in action a mere week before war ended.  His parents received the telegram notifying them of their son's death on November 11, Armistice Day.

This is his greatest poem -- "Dulce et Decorum Est"

           Bent double, like old beggars under sacks,

           Knock-kneed, coughing like hags, we cursed through sludge,
           Till on the haunting flares we turned our backs

           And towards our distant rest began to trudge.

           Men marched asleep. Many had lost their boots

           But limped on, blood-shod. All went lame; all blind;

           Drunk with fatigue; deaf even to the hoots

           Of tired, outstripped Five-Nines that dropped behind.

           Gas! Gas! Quick, boys!—An ecstasy of fumbling,

           Fitting the clumsy helmets just in time;

           But someone still was yelling out and stumbling

           And flound’ring like a man in fire or lime...

           Dim, through the misty panes and thick green light,

           As under a green sea, I saw him drowning.

            In all my dreams, before my helpless sight,

            He plunges at me, guttering, choking, drowning.

            If in some smothering dreams you too could pace

            Behind the wagon that we flung him in,

            And watch the white eyes writhing in his face,

            His hanging face, like a devil’s sick of sin;

            If you could hear, at every jolt, the blood

            Come gargling from the froth-corrupted lungs,

            Obscene as cancer, bitter as the cud

            Of vile, incurable sores on innocent tongues,—

            My friend, you would not tell with such high zest

            To children ardent for some desperate glory,

            The old Lie: Dulce et decorum est 

            Pro patria mori.

The old lie -- that it is "sweet and honorable" to "die for one's country" -- is still being told in the Middle East. It is also still being told  in the hawkish neo-con precincts of our own war exhausted polity.  Sometimes it is packaged in religion, other times in an overblown sense of the rightness of one's cause (and the wrong-ness of the other guy's), still others in a xenophobic arrogance of asserted and exclusive greatness.  In war itself, the lie disdains any legalistic effort at proportional response or any real effort to separate civilians from combatants.

Those who won't tell the lie are really the noble ones.  In words spoken in eulogy of another dead soldier, this one slain on the battlefield of our own domestic turmoil in the '60s, the truly noble see "wrong and try to right it, suffering and try to heal it, war and try to stop it."  

This year's nobility award must go  to John Kerry.  

Kerry has been criticized of late by almost everyone.  In his multi-month quest earlier this year (and last) for an elusive peace deal in the Middle East, there were Israeli government officials calling him messianic, while their Arab counterparts just thought he was prejudiced.  He nonetheless worked tirelessly to bring the parties together, and, as had President Clinton in the latter days of his own administration, got them a good deal of the way there. Also as had Clinton,  however, he couldn't get them to do a deal.  

Undeterred by this failure, Kerry then  immediately sought to negotiate a cease-fire when the war in Gaza broke out last month. Again he was criticized, this time for being ineffective and beside the point.  At the end of the day, however, the current cease-fire fell into place more or less along the lines  that he and the Egyptians had been suggesting.  At this writing, it is holding but still uncertain.

Peacekeeping may be a fool's errand in the Middle East but in truth it is still the only available option if all the warring parties are to survive, never mind prosper.  Gaza is a quagmire of poverty and misery cut off from the rest of the world by virtue of blockades.  It has no future if governed or controlled by the military wing of Hamas, just as the Irish of Northern Ireland had no future had they permitted themselves to be forever beholden to the bomb throwers in the IRA.  Similarly, Israel cannot continue to be a democracy if it enforces a de facto apartheid on more than half the people who live there and commits itself -- however justified (and as a matter of self-defense, it is) -- to a permanent state of mobilization in the service of month long wars on the bad guys every once and awhile.  

Neither side, moreover, can assume the mantle of nobility if -- wholly apart from any historic grievances -- one is using civilians as shields and the other is treating civilian deaths as the unavoidable consequence of its disproportional response to the threat at hand. This does not create moral equivalence.  The sins are distinct, not equal, and either could (and should) resolve its own faults without insisting on a similar resolution by the other.  In other words, Hamas could stop illegally shielding rockets in schools; in fact, it could simply stop firing rockets indiscriminately at Israel.  And Israel could respond proportionally to the real -- though, in actuality, negligible -- threat Hamas's attacks create.

Meanwhile, the world could get back into the business of peace-keeping.

Which was John Kerry's unique insight over the course of the last year.

In its recent July 20 issue, the New Republic published an exhaustive account of  Kerry's effort. Though the effort failed, Kerry's achievements need to be praised.  First, he was able to actually get the Israelis and Palestinians to agree to talk, crafting independent deals with both sides --  for the Israelis, getting them to agree to free eighty prisoners in exchange for the Palestinians agreeing not to join any UN conventions, and, for the Palestinians, a reiteration of America's policy commitment to  resolving the ultimate border between the two states based on the 1967 lines -- just to get the talks started. There then were nine months of dialogue in which all the usual players acted out -- Israeli refuseniks, apoplectic over the possibility of a Palestinian state and/or settlement closures, insulting and threatening Netanyahu, and Palestinian die-hards refusing to delay by a day or two the last tranche of prisoners to be exchanged so that Netanyahu could convince his Cabinet without bringing down his government. 

When it was clear that the nine-month negotiating period would be insufficient, Kerry still refused to give up. He proposed instead a framework for continuation that included creative technological measures aimed at solving Israel's long term security concerns in the West Bank, and even a deal to release Jonathan Pollard. In the end, the framework proposal went nowhere as the Palestinians -- frustrated by the delay on the prisoners -- signed the UN conventions (which the framework proposal probably  could have survived) and then announced a unity government with Hamas (which it clearly could not). 

Kerry's insight was that he saw peace as the only option, even at a time when the world had more or less given up on the idea.  Later, after the talks failed and the bombs and rockets flew from and into Gaza,  Kerry still rose to the challenge.  

He rejected the old lie.

He saw war . . .  

And tried to stop it.

E-MAULED

E-MAULED

I am tired of emails.

Not because I get too many of them (I do).  It's because most of them are pretty dumb.

I am a Democrat who years ago ran for Congress and served on New York's Democratic State Committee. Consequently, I am what they call in the trade a "base voter."  Also consequently, I am on everyone's email list.

This has caused no small amount of gridlock on my own personal internet highway.  

And for no apparent purpose.

I live on the border of Putnam and Westchester County just north of New York City.  My congressman is Sean Patrick Maloney.  (I know that because I never receive an email from him that doesn't include his middle name.)  He is gay. (I know that because he has told me this a thousand times, while also telling me it doesn't matter for purposes of his being a Congressman, with which I agree.)  He is married.  (I know that because he sent me pictures from his wedding to Randy, which was nice but unnecessary; I don't get pictures from the weddings I go to and wasn't invited -- no offense taken -- to his.)  Finally, I know that he was born on July 30. (I know that because Randy sent me an email last Monday asking me to sign Sean Patrick's e-card.)

None of this matters.  I voted for him because he is a Democrat who supported Obamacare, raising the minimum wage and the draw down in Iraq, and because  the prior Republican incumbent was way too comfortable with the Tea Party (which, in my mind, mixes hypocrisy and idiocy in equal measure to advance its politics of "No.")

So I don't need the wedding, birthday card, or Christmas wish emails, nor the almost daily requests for a campaign contribution. (I gave before and will again, but only once, and only when I know it won't be going to some out-of-district, big-foot media consultant.)

Maloney, however, is not remotely the worst.  At least I am one of his constituents.  That cannot be said, however,  for Kyrsten Sinema (Arizona), Sean Eldridge (candidate in northern New York ), Brad Schneider (Illionois), Jan Schakowsky (Illinois) or Joe Kennedy III (Massachusetts).  I hear from them all the time too, receiving more or less the same menu of birthday, holiday and please-give-me-some-money missives.  

Then there's the D-triple c (dccc or Democratic Congressional Campaign Committee), the DSCC (Democratic Senate Campaign Committee), and  the DNC (Democratic National Committee). They're always emailing me for money too. Sometimes they get President Obama or Vice President Biden to email me as well.

For money.

My political friends tell me that email solicitations of small donors is now the hottest thing in political fundraising.  The Democrats have apparently already raised a ton of small donor money on the emails publicizing the right wing's not too disguised desires to impeach the President.  This, in turn, has sent the media, and Speaker Boehner, into paroxysms of rage (in Boehner's case) or laughter (in the media's) given the perceived unlikelihood of such a move.  

The Speaker and his friends say the impeachment talk is being cooked up by the Democrats just to raise money.  Meanwhile,  the Democrats keep pointing to the right wing crazies in love with the I-word. (Boehner, of course, hasn't helped himself lately; he just got his caucus to vote to sue the President for failing to enforce Obamacare, which is pretty funny coming from them, and which -- in any case -- the Democratic emailers are treating as a mere prelude to impeachment.)

There are reasons people hate politicians.

They constantly create the impression that either they are irrelevant (because they aren't doing their job but seem to be very busy trying to keep it) or we are stupid (because we somehow care about sending them birthday cards).

I thought of just hitting "unsubscribe" at the bottom of all the emails.  But then I decided this would be useless.

My wife was getting the same emails and tried to unsubscribe.  

It didn't work. 

She kept getting them. 

By the way, I didn't sign the e-card but Happy Birthday anyway Sean Patrick.

Now get back to work.

MEMORIES

MEMORIES

It's Memorial Day, 2014.

Time to remember the vets.

Here's one I remember.

It was the summer of 1979.  I had just finished my first year of law school and had a summer internship working for the U.S. Attorney's office in Newark, New Jersey.  There were about twenty interns and we were each assigned to an Assistant U.S. Attorney (AUSA), one of the hundred or so line prosecutors in the office. 

I was assigned to AUSA Ted Lackland.

Columbia Law grad.  Ex-associate at a Wall Street law firm with a Masters in Philosophy from  Howard University. Grew  up in Chicago, where he went to college and married his girlfriend.  And . . .

Ex-Captain in the US Army, graduate of Ranger school, and Vietnam combat veteran.

I learned a lot that summer -- how to try a case, do an investigation, cross- examine a witness, joust with a judge and persuade a jury.  

But mostly, that summer, I learned a lot about the Vietnam War and about one guy who served there, came home, made a life and career for himself,  and . . .

Was never bitter.  

Even though he had a right to be.

The Vietnam War Ted Lackland described was not the one I had read about in the newspapers.  He had left for Southeast Asia  from Oakland on June 6, 1968, the day Bobby Kennedy died.  He told me he thought he might be going to a safer place given the turmoil and riots which by then had become that era's domestic imprint. He must have been quickly disabused of that notion once he arrived in South Vietnam, however, because he also told me he thought he was going to die there -- from the first day he arrived 'til the last day he left.

Which, for me, was lesson one in the life of a combat vet. 

You live in constant fear.  It's a mental tension that never goes away.  We all now know about post traumatic stress  disorder. This is pre-traumatic stress disorder.

When he got to Vietnam, Capt. Ted Lackland  was supposed to command a mechanized battalion, for which he had been trained. But there either weren't any there then, or weren't enough of them. So the higher-ups made him run an infantry battalion. They said he was a Ranger and that Rangers could do anything.  The fact that they said this tells you a lot about how bureaucracies cover their butts. 

The fact that Ted did it tells you a lot about him.

As the summer continued, so did my education.  The first thing Ted did when he got his battalion was blow up the liquor bunker.  In Vietnam, even if every day seemed to be your last, drunkeness did not increase the chance that you might be wrong and live to worry tomorrow.

The next thing he did was enforce order.  No back talk.  In fact, no conversation.  This was war, not a debating society, and survival, not feelings, was what counted.  He fined anyone who was not wearing their flak jacket properly.  The troops complained.  In Vietnam it was 120 F and humid on the best of days. "It's too hot to wear," one GI bitched about the flak jacket order. "It's supposed to be," remarked the Captain, "It stops bullets."

Others were fined for walking on the dykes in the rice paddies. The dykes were booby-trapped.  The  chest deep water in the paddies was  rat infested and snake riven.  But it wouldn't kill you.

Then there was the racism.  

Some guys were constantly drawing perimeter patrol duty, which materially increased the chances of coming home in a box. Lackland regularized that duty so that everyone had to take his turn.  One black private came up to him, their black Captain,  and said, "I know I'm gonna get fined for this, but I just wanted to tell you that the black guys in this outfit hate you.  Which is OK. 'Cause the white guys in this outfit hate you just as much."  Lackland looked at him and said, "You're right.  Fifty dollars."

When he collected the money, he sent it to the private's account.

Which is what he did with all the fines.

In June 1968, Gen. Creighton Abrams replaced Gen. Westmoreland as the head of the Military Assistance Command, Vietnam (MACV). Within the year, Abrams noticed this Captain from Chicago and asked him to make a career of the Army. Ted, however, had other plans.   They included law school and . . .

Dorothy.

Who he married soon after he returned.

After graduating from Columbia, Ted was an associate for three years at Dewey Ballantine Bushby Palmer & Wood.  (That's the old Dewey Ballantine of Gov. Dewey and, before him, Elihu Root, not the ad hoc version that greed recently ran into the ground.)  He then served as an Assistant US Attorney for three years before moving to Atlanta,  where he still practices law.   

There are lots of guys alive today because of Ted Lackland.

And at least one law student who learned about a lot more than law in the summer of '79.

Thanks, Ted.

IT'S ALL GREEK TO ME

IT'S ALL GREEK TO ME

The Supreme Court moved backwards this week.

In Town of Greece, New York v. Galloway, the Court upheld the practice of opening  monthly town board meetings with a prayer. 

The facts of the case were fairly breathtaking.  The town of Greece has monthly meetings of its town board. At those meetings, in the lingo of  lawyers, the board performs both "legislative" and "adjudicative" functions. In other words, the board debates and votes on ordinances that will govern the town as a whole, the so-called legislative function, and the board also entertains petitions and requests from attending citizens, e.g., requests for zoning variances, the so-called adjudicative function.

In 1999, Greece's newly elected town supervisor decided that town meetings should open with a prayer. And, from that point forward, they did.  The prayers, however, were offered exclusively by Christian ministers or Catholic priests.  These prelates would be invited to the rostrum adorned with the town seal in the center of the meeting room. They would then face the public and invite them to stand and pray.  

Between 1999 and 2010, there were roughly 130 invocations.  Of those, at least two thirds expressly invoked and praised two of the deistic giants of Christendom, Jesus and the Holy Spirit, seeking inspiration from the third person of the Trinity in the holy name of the second.  The other third were directed to the "God of all creation," the "Heavenly Father," or the "Kingdom of Heaven."  

After Susan Galloway complained and filed her lawsuit, the town had a Jewish layman do one prayer and the chairman of the local Baha'i temple another; a Wiccan priestess who read about the controversy in the press apparently volunteered to do so as well. None of this out-reach continued, however, and so the opening prayer reverted to its exclusively Christian messenger and its more or less predominantly Christian message.

This was an easy case.

The Establishment Clause of the First Amendment requires that government be strictly neutral when it comes to religion.  It can't favor one denomination over another;  it can't proselytize on behalf of one faith; and it cannot establish any one faith as the state religion. For years, there was an on-going dispute as to whether this ban on establishment, along with all the other requirements of the Bill of Rights,  actually applied to the individual state and local governments.  But this has pretty much been resolved in favor of the notion that it (and they) have been incorporated against the states via the due process clause of the Fourteenth Amendment. 

So, the reality here is that the town of Greece was pretty clearly violating the law .

It routinely sanctioned an explicitly Christian prayer in an environment where non-Christian citizen-participants could easily feel coerced into participation lest they alienate the very officials before whom they presumably had business.

But four justices on the Supreme Court -- Kennedy,  Scalia,  Alito, and Thomas -- and the Chief Justice -- Roberts -- did not see it that way.

Why?

There were four reasons given by the Justices themselves.  First, they claimed that the sanctioned practice of opening Congressional (or any of the various state legislative) sessions with prayers made it permissible in this case. Second, they asserted that any requirement that localities monitor the content of  prayers so as to make them, in effect, non-denominational, was itself constitutionally impermissible.  Third, they claimed that the locality in this case -- the town of Greece -- was not required to look outside its borders so as to expand the denominational list of religious who it could ask to conduct the prayer.  And finally, though the  incorporation debate ended long ago,  it is a testament to either Justice Thomas's independence or stubbornness that he thinks it hasn't.  In any case, he claimed that the Establishment Clause was not binding on the states and localities.

None of these ostensible justifications work.  In fact, they are so bad that they suggest something else is going on . . .

And that "else"  may be very disturbing.

The cases blessing opening prayers before Congress or state legislatures have been very clear in noting that the prayers in those instances were directed to (and offered for the benefit of) the lawmakers themselves, not the public.  They were offered on the floors of the various chambers, where the public was nowhere to be found,  and the lawmakers themselves were  performing legislative, not adjudicative, functions. Consequently, there was no risk in those cases that citizens would be coerced into religious participation simply to curry favor in a setting where they were actually asking for something from state or federal officials. In fact, where coercion was even remotely possible -- for example, at hearings where the public testifies -- no prayers were permitted. In contrast, of course,  the prayer in Town of Greece was directed to the public, some or all of whom had business before the town board.  

Over the years, Congressional prayer also has been  relatively non-denominational, especially in the last century, and in any case has been given by a multitude of religious.  Either of these approaches can help save prayer from constitutional death in a government proceeding because they each create the religious neutrality demanded by the Establishment Clause, the former through non-sectarian language and the latter by embracing a plurality of religious voices.  Moreover, the notion advanced by the Justices that officials can't insist on non-denominational prayer or, absent that, be inclusive in searching out a variety of prayer-givers, belies the actual facts.

Because precisely that has been going on all over the country . . .

All of  the time. 

Just not in Greece, NY.  

The mistakes made by the Court majority here were both pedestrian and somewhat juvenile.  Competent and seasoned appellate jurists do not ignore facts, especially where, as here, they all agree that the outcome is "fact sensitive." Nor do they claim to be adhering to settled precedents when the actual  facts render those precedents inapposite.  

But that is what happened here.   

The five who voted in favor of the town of Greece's prayer are all Catholics.  One of them, Justice Alito, berated the dissent as "really quite niggling" for insisting that a small town, if necessary, look outside its borders for religious from different denominations, effectively resting constitutionality on the ostensible good faith evidenced by restricting searches to the four corners of a jurisdictional midget.   To Alito, of course, there was no exclusion because his people made the cut.

But would he -- or any of the others in the majority -- have had the same view if the case involved a town whose geography resulted in a decades long parade of imams offering the opening prayer, and praising Allah, before the town board went to work?

Justice Holmes once said that hard cases make bad law.  

Nowadays . . .

So do easy ones.

IT'S ALL GREEK TO ME

A VERY GOOD FRIDAY

The good news today is that eight million people have now signed up for medical insurance under the Affordable Care Act (ACA).

The better news is that, of those eight million,  more than a third were under the age of  35.

The best news is that, in addition to those eight million signees, three million more have signed up for expanded Medicaid made possible by the ACA, another three million young people are now covered under their parents' health insurance plans, and an additional five million individuals have signed up for non-exchange plans.

All of this is thanks to Obamacare.  The enrollment numbers exceeded projections by more than one million, and the fact that at least a third of those enrollees were under 35, with another three million under 26 year olds covered by Mom and Dad's plan, was especially important.  The 18-35 year olds are the so-called "young invincibles."  They must be part of the covered population if Obamacare is to succeed.  In fact, the only way to keep premiums down in a system that delivers health care through market based insurance is to make sure the insured pool is large enough for the healthy young to effectively absorb the cost of caring for  the aged sick.  And this is exactly what the ACA is doing.

Everyone should be cheering.

But, of course, everyone isn't.

John Boehner greeted the news of eight million enrollees by asserting that the President was ignoring the "havoc" the law ostensibly created for the "hundreds of thousands" who had plans they liked but had to re-enroll in new plans that met the ACA's minimal standards. Others complained that any claim of success was premature --either because the newly enrolled might not pay their premiums, or because it was not clear how many of those enrollees actually were uninsured prior to Obamacare, or because health care premiums and costs are still rising.  

None of these claims has merit. 

Private insurance companies are in the business of making money. For years, they did so by denying coverage to those with pre-existing conditions and by otherwise cherry picking premium payers to increase the chances that those payers would never actually need health care.  The minimalist plans put out of business by the ACA simply aided and abetted this strategy.  Most of them were high deductible, minimal coverage or  catastrophic plans; as such, they did not encourage or incentivize wellness because they did not cover a lot of the routine care needed to do so, especially routine care for women.  

One of the goals of Obamacare is to radically reduce the rate of medical inflation which for decades has been running at well in excess of the inflation rate as a whole.  And one way to do this is to incentivize the preventive or routine care that cures small health problems before they become large, expensive ones. The minimalist plans did not do this.

The minimalist plans also threatened to capture the young.  The plans were cheap and the provided care was thin.  In other words, it was made to order for the young invincibles who thought they'd never get sick or be hospitalized.  An insurance system, however, can't keep costs down if it gives away the young and  healthy or, more particularly, if it allows the cost savings inherent in good health to be captured by the young and healthy -- in the form of much lower premiums,  but only for them --rather than being spread over the risk pool as a whole.

Nor do any of the remaining complaints carry weight.

As to overall cost, the available data from the Society of Actuaries -- in other words, from the people who know how to count -- tells us that premium hikes will actually be much less than expected. This is the reason the Congressional Budget Office (CBO) recently lowered its estimate of the federal budgetary cost of Obamacare by $104 billion over ten years.

As to the cry that enrollees will not pay their bills, this is simply chimerical. There is really no evidence for this claim and a lot that refutes it.  The Department of Health and Human Services estimates that 80% of the enrollees already have paid their bills. And other than the rantings of the anti-Obama right wing, there is nothing about the other 20% which credibly  suggests they are a unique group of deadbeats.  

Finally, the notion that enrollment is not catching the uninsured is also baseless.  The CBO expects the number of uninsured to decline materially this year, and private survey data indicates that the share of Americans without insurance went down by about 20%  in the six months since the state and federal exchanges opened in October.

So, will the diehards be satisfied and stop demanding mindless votes to repeal  in the GOP House of Representatives?

Uh . . .

Never.

The problems with Obamacare are neither administrative nor economic.

They are political.

The GOP is hell bent on re-capturing the Senate. It needs a net gain of six seats to do so, and the conditions for re-capture are particularly auspicious this year.  Of the thirty six Senate seats up for election, twenty two are held by Democrats and fourteen by Republicans.  For the GOP, the Democrats who they believe can be beat are in seven states --  Montana, South Dakota, Arkansas, Louisiana, North Carolina, West Virginia and Alaska.  Obamacare is popular in none of them, and though  state exchanges, where they have been created, have worked very well, they haven't been created in thirty two states, nor in any of seven states the GOP is now targeting to take back the Senate.  

Similarly, while the ACA expands Medicaid eligibility and provides enormous federal subsidies to defer the cost, four of the seven GOP target states wouldn't do that either.  The result is that the voters in those states have little positive experience with Obamacare, a lot of negative experience (they all defaulted to the federal marketplace given the absence of state exchanges and thus were subject to the disastrous roll-out last fall), and an echo chamber of GOP opposition that will get progressively louder as we head toward November.

These political battles will continue. If past is prologue, they may even continue for generations, as has been the case with Social Security and Medicare since their inceptions. 

But for now,  this is still a very good Friday.   The early data from Obamacare is in.  And it undeniably proves that . . .

Sometimes . . .

Big Government works!