YOU WERE THE BEST OF US

Two wrongs don't make a right.

Right?

Not quite.

Ruth Bader Ginsburg died this past Friday. In her twenty-seven years on the Supreme Court, forty years as a judge, and sixty years as a lawyer, this waif of a woman -- five feet tall and a mere hundred pounds -- was to the legal battle against discrimination based on sex or gender what Thurgood Marshall had been to the legal battle against discrimination based on race.

Namely, its giant.  

In the 1970s, initially as a law professor and then as the head of the ACLU's Womens Rights Project, she orchestrated a step-by-step approach that had the Supreme Court first  hold (in 1971 in Reed v. Reed) that the equal protection clause barred discrimination based on gender  and then begin to systematically apply that holding to reverse the sterotypical realities embedded in the world in which she had grown up and lived.  One by one, and at her careful urging, they fell -- sex-based discrimination in laws regulating military housing allowances, Social Security survivor benefits, state-regulated drinking ages, and rules on who could opt out of jury service or administer an estate.  

Her approach was as strategic as it was enlightened.  

A number of her clients, the "victims" of gender-based discrimination, were men.  

As were, at that time, all the Justices on the Supreme Court.

In 1980, President Carter appointed her to the federal Circuit Court of Appeals in Washington, DC. In her thirteen years there, she developed a reputation as a measured and cautious jurist. She sought consensus. Colleagues with whom she disagreed were not thought of as  opponents or enemies. To the contrary, she befriended two of the most conservative among them, Robert Bork and Antonin Scalia, and became a lifelong friend of the latter.  

Their families regularly celebrated New Years Eve together. 

And Scalia for his part was smitten.

At a lunch with his own law clerks in the early '90s, he was kiddingly given a conservative's Hobson's choice -- "If you had to spend the rest of your life on a desert island with Harvard Law Professor Laurence Tribe or New York Governor Mario Cuomo," the clerks asked, " which would you choose?"

His reply: "Ruth Bader Ginsburg".  

Professor Steven Calabresi, who clerked for Bork on the DC Circuit Court while she was there, called her "a common law constitutionalist. She thinks the Court should not go too far in any given case."

He was right.  

In a much-reported speech at NYU while an appellate judge, she criticized the Supreme Court's decision in Roe v. Wade, arguing that it was "overly broad" and had "prolonged divisiveness" by "halt[ing] a political process that was moving in a reform direction".  In her view, the Court should have limited itself to holding the Texas statute (which banned abortions in all cases except to save the life of the mother) unconstitutional.  States would then have had to determine whether other regulations  were appropriate, and those that passed would have been challenged in court. She thought incremental evaluation and progress was preferable to Justice Blackman's all at once approach, that it would have allowed the rest of the country to catch up and stopped the Court from getting too far ahead of the public. 

She also thought it would have short-circuited the right to life movement and the rise of judicial fundamentalism.

Was she right?

We'll never know 

The Roe-inspired rise of the evangelical right suggests she was.  The fact, however, that state-based reforms were then being vigorously attacked in all the legislatures where they were moving forward (by, among others,the Catholic hierarchy) suggests she wasn't.   

In 1993, President Clinton nominated her to the Supreme Court.  Because of her reputation as a moderate and her expressed skepticism on Roe, liberals were nervous and conservatives silent.  The Senate confirmed her by a vote of 96-3.  No nomination since has beaten that number.  In her twenty-seven years on the Court, she successfully fought back efforts to curtail abortion rights to the point of non-existence, though the effort was far more successful in the earlier years (when Sandra Day O'Connor, John Paul Stevens, David Souter and Anthony Kennedy were on the Court with her) and today hangs by the merest of threads.  

Meanwhile, she continued to erase the plague of sex discrimination, open the doors to equal justice and equal rights, and preserve Congress’s ability to solve national problems. In her most celebrated early decision, United States v. Virginia, she wrote the 7-1 majority opinion striking down the Virginia Military Institute's males-only admissions policy. The only vote against it was Scalia's, who said the ruling would kill VMI.  It didn't.  In Obergefell v. Hodges, she was part of the Court majority that declared gay marriage a constitutional right.  Fundamentalists predicted that this would kill traditional marriage.  

But it didn't either.  

In Ledbetter v. Goodyear Tire & Rubber Co., her most celebrated later dissent, she upbraided the brethren for running the clock on a claim of wage discrimination where the victim, Lily Ledbetter, was not and could not have even been aware that she had a claim. Her dissent was so persuasive that Congress later amended the statute to cure the Court's ridiculous determination.  And on the Affordable Care Act and voting rights, she was stalwart in rejecting the right wing notion that Congress lacked the authority to legislate (health care) or that the problem had been solved (voting rights). 

After its 1992 decision in Planned Parenthood v. Casey, Supreme Court  jurisprudence on abortion shifted away from Roe's focus on privacy and toward Casey's concern that any regulations not impose an "undue burden" on women.  

The doctrinal  shift was tailor made for Justice Ginsburg.  

As a litigator, she had fought against gender discrimination on the grounds that stereotypical distinctions based on sex violated the equal protection clause. In her later years on the Court, often in dissent, she embraced a version of that same analysis in refusing to approve increasingly burdensome regulations on the legal right to an abortion. In Gonzalez v. Carhart, which upheld a state ban on partial birth abortion that did not include a health exception, she wrote in dissent that "legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course and thus enjoy equal citizenship stature."  She also explained that "the absence of a health exception burdens all women for whom it is relevant" and "the reasoned medical judgments of highly trained doctors" ought not be rejected as "'preferences' motivated by 'mere convenience'".

For Ruth Bader Ginsburg, the issue in the final analysis was who decides.

And with her passing, that issue will assume center stage once again and be debated at multiple levels.  

Here are at least two.

First, and on abortion, the fundamental issue will be, as it has always been, who gets to decide when life begins. Or, put differently, who gets to decide when a person is . . .

A person.

The Roman Catholic hierarchy thinks it gets to decide, as do Biblical fundamentalists within various other sects.  According to them, life begins -- a person exists -- at conception.  

In other words, embryos are people.  

This, however, is not a position notable Church fathers like St. Augustine or St. Thomas Acquinas advocated or accepted.  To the contrary, they thought ensoulment or personhood was organic and developed over time.  Conception was not some sort of magic moment.  But today, this view is among the Catholic Church's best kept secrets. The hierarchy assiduously ignores it and instead claims to have opposed abortion for two millenia.  The problem, however, is that the Church's reason for that opposition has changed dramatically over time.  Early on, it opposed abortion because it viewed the act as a form of birth control, not because it thought the act tantamount to murder or infanticide.  Only later, and only after losing civil political power in Italy and claiming it had to be the determinative moral arbiter for the world's 1.2 billions of Catholics, did it turn -- contra Sts. Augustine and Thomas -- embryos into people.

For their part, American conservatives think state legislators get to decide.  In their minds, if an unelected Supreme Court refuses to respect the wishes of any state legislature on this question, that Court usurps the will of the majority reflected in the votes of its duly elected state representatives. The Court then becomes illegitimate, a counter-majoritarian pariah. The problem with this claim, however, is that the Court in Roe and Casey did not counter or usurp any national majority. In fact, to the contrary, those decisions pretty much reflect the national consensus on abortion. What they do not reflect is the opposition to abortion in states whose local majorities constitute a distinct national minority.

Second, in view of the fact that we are now a mere forty-four days from a presidential election, there is the overriding question of who gets to decide Justice Ginsburg's replacement.

In a normal America, the answer would be self-evident. Under the Constitution, the President gets to nominate a new Justice to fill any vacancy and the Senate gets to advise and consent.   This, however, is not how things work in Mitch McConnell's world.  In his world, Presidents do not get to fill vacancies on the Supreme Court in election years.  Instead, only the next President gets to do so.  No one actually thought this was the rule until February 2016, when Justice Scalia died and McConnell made it clear that his party was not even going to hold a hearing -- let alone allow a vote -- on President Obama's then nominee to replace him, Judge Merrick Garland.

But here we are.

My own view is that McConnell was wrong in 2016, that denying Trump the right to nominate Justice Ginsburg's successor might arguably be wrong in 2020, and that generally speaking two wrongs do not make a right.  

Except when they do.

As they do . . .  

Right now.

To begin, McConnell's rule was always a fiction.  When Scalia died, Obama's term was a little short of a year from being over and the election was ten months away.  It was more than possible to do the customary investigations and hearings that now accompany appointments to the Supreme Court.  It was also not accurate to say (though McConnell and his seconds did) that Justices had not been nominated or confirmed in election years in the so-called modern era.  Supreme Court vacancies were filled in 1916, 1932, 1956 and 1986, all election years.  

So, McConnell was wrong.

More or less categorically (though one could argue that nominations and confirmations in the weeks before an election were more or less non-existent; in fact, in the country's entire history, those have occurred only twice).

Unfortunately, his wrong was not without consequences, both short and long term.

In the short term, McConnell's perversion of history has allowed Donald Trump to fill two vacancies to date and has shifted the balance of power on the Supreme Court.  The addition of a third Trump-appointed conservative will change that institution for decades.  

Trump never should have been put in the position where that was possible. And had McConnell not invented his no-Supreme Court-appointments-in-an-election-year canard, he would not have been.  Garland would have been on the Court when Trump assumed the Presidency and Trump to date only would have been able to fill the single seat vacated when Justice Kennedy later retired.  

But he has picked two, not one, and now wants to fill the Ginsburg seat.

If it can be, that has to be stopped.  

If it can't be, and Trump loses in November, the Democrats have to pass structural reforms that re-set the balance on the Supreme Court.  To date, many such reforms have been proposed and can later be considered.  What the Democrats cannot accept is business as usual.  

McConnell never has.

Nor has Trump.

I'm not worried about my own hypocrisy, or squaring any ethical circles, or engaging in silly debates over whether I actually understand the so-called McConnell rule.  Though Mitch is now (conveniently) saying his rule is not applicable today because it only applies when different parties control the Senate and the Presidency, that is not what he said in 2016.  

Nor am I interested in debating his claim that, since the 1880s, no Supreme Court nominee has ever been confirmed in an election year in which the Senate and the Presidency were controlled by different parties. True or not, the number of times this was even possible is not a remotely large enough sample from which anyone -- let alone a power hungry partisan like McConnell --  should be permitted to deduce or infer a rule. 

In the longer term, McConnell's pas de deux with invented rules and hypocritical reversals is killing the Senate, an institution already on life support.  Savvy critics of anti-democratic or counter-majoritarian threats understand that the Senate is one par excellence. The 53 Republicans who today control that body do not come from states even close to representing majority opinion in the nation as a whole, and the positions they advocate on health care, voting rights, gay rights, abortion, taxes, and judicial appointments are not shared by any national majority.

Sooner or later --  and my bet is sooner rather than later -- America will get sick and tired of minority rule, whether it comes clothed in Presidents who continually lose the popular vote  or in Congresses hamstrung by Senates that over-represent small states.  Trump and McConnell could have healed the wounds these structural possibilities cause by governing from the center, and Trump himself could have done so by checking his insults, ad hominems  and anger  at the door.

Neither has.

In many respects, they represent the worst of us.

So, RIP Ruth Bader Ginsburg.

In a life where brilliance was your alter ego but discrimination your companion, where a law school dean wondered why you were there and judges and law firms would not give you a job, you found and married one of the few guys who was different . . . 

And then made your country different as well.

You were the best of us.

ONE BOY THAT SUMMER

Dear God,

This is a thank you note.

Long delayed in one case but pretty current in another.

As You know, Tom Seaver died last week.

For twenty years, from 1967 to 1986, Seaver  mesmerized baseball fans, winning 311 games, striking out 3,640 batters, compiling a career earned run average of 2.86 and pitching a now unheard of 231 complete games.  He won the Cy Young award three times (1969, 1973 and 1975), struck out 200 or more batters in a single season nine times, threw more than 200 innings (also unheard of today) in sixteen seasons, and was a near-unanimous choice to the Hall of Fame in his first year of eligibility, winning a then-record 98.84% of the votes.

In 1970, in a game tying the major league record for 19 strikeouts, he fanned the last ten batters in a row.

No starting pitcher could do that today either, mostly because they never last beyond the seventh inning.

You probably don't need me to tell You all this, You being God and all.  But on the off chance that  baseball is not Your most important concern -- it is, after all, a game -- I'll continue.

In 1969, Seaver led the New York Mets to their first world championship.  There has been one since, in 1986,  and three other losing appearances (in 1973, 2000 and 2015).  Two of those five trips to the World Series were improbable.  In 1973, the team was in last place on August 30 with a losing record but snuck into the playoffs a month later two games over .500, four teams barely behind them, none of them having particularly acted like they wanted to win.   And in 2000, they made it to the playoffs as a wild card team, which is our way of turning second place into total victory (but, in truth, was probably created to generate more advertising revenue for the teams).

In any case, then there was 1969  . . .

Which was impossible.

Some even called it a miracle.  (Please advise.)

The team, true to form, lost on opening day that year.

To an expansion team, the Montreal Expos.

God, just think about that for a minute.  The baseball gods -- these are the folks who don't have as much power as You but sometimes think they do and act that way -- had decided to spread pixie dust on the hapless Mets, literal bottom dwellers in the first seven seasons of their brief existence, by scheduling them on opening day against a team that was even worse, a team that would go 52-110 that season and finish 48 games out of first place.

But the Mets lost anyway.

The bullpen gave up four runs in the eighth inning.

And things did not get much better thereafter.

They were 3-7 ten days into the season . On June 1 they were in third place in their six team division but still had a losing record.  On July 1 they were in second six games above .500, an extraordinary improvement given their sorry history but still eight games behind the first place Cubs.  And by August 14 they had slipped to ten games behind.

Then they did nothing but win.

Which is more or less when people think You may have gotten involved.

They went 38-9 the rest of the season to finish first in their division, swept Hank Aaron's Atlanta Braves in a best of five playoff for the NL pennant, and then beat the Baltimore Orioles four games to one to take the World Series. Hank Aaron is baseball's all-time home run king. (Or was until Barry Bonds beat his record.  But Bonds was cheating so lots of us think Hammerin' Hank is still the guy on home runs.) And the Baltimore Orioles, who went 109-53 that year, were so good that, at the start of the World Series, no one down here gave the Mets any chance at all.

Seaver was stellar. 

25-9 during the regular season, he won the first playoff game and pitched a masterful 10 innings to win the fourth and pivotal game of the World Series. The next day, with Jerry Koosman pitching, the Mets won the whole shebang.

When the last out came, Seaver was the first player from the dugout to jump on Koosman. Tons of other folks ran onto the field to celebrate.  In a sort of non-Biblical rapture, children ran happily screaming through schools.  Sadly, some people in Baltimore were heard taking Your name in vain. You, however, might want to forgive them. This was the second time in a year that a supposedly superior team from Baltimore had been beaten by a weaker one from New York, given that the Colts had lost to Joe Namath's football  Jets in the Super Bowl that January, and people from Maryland probably thought You were just being unfair to let that happen again.

(Sorry for the sidebar. I don’t need to tell You who to forgive.)

Anyway, and as You also know, I was born in 1956 and grew up in Brooklyn, NY.  I was named after my maternal grandfather, who I called "Poppa" and loved beyond words (he's with You now so please say "Hello" for me).  Poppa, also born and raised in Brooklyn, had been a lifelong Brooklyn Dodger fan.  But when the Dodgers left Brooklyn for Los Angeles in 1958, he -- like most Dodger fans in Brooklyn -- became a baseball widow.  He hated the Yankees and Walter O'Malley, the owner who took the Dodgers west.  It was thus not remotely possible for him to root for the Los Angeles Dodgers or switch his allegiance to the baseball team that remained in New York.

So, truly, Poppa was in mourning.

To say that a part of Brooklyn died when the Dodgers left is not an overstatement. The team was the borough's identity.  The summer sound track in Brooklyn in the 1950s was of kids playing and Dodger games on the radio. You could literally walk down the streets following the play by play from open windows, or so I was told.  For the most part, the players themselves lived in its neighborhoods, certainly during the season. And with Jackie Robinson, the team had literally changed America.

All men may not have been created equal in the segregated south (or even the red-lined north).

But they sure as hell were at Ebbets Field.

(Apologies for the "hell" in that last sentence, but there really is no other way to make the point.)

And then,  in 1958,  they left.  

And  a giant hole was left to fill.

Until 1962, when the Mets filled it.

Poppa's love of baseball was resurrected that year.  I think it was, as we say down here, an Act of Yours.  At the very least it was mystical and somewhat  inexplicable.  New York had a new team.  And the new team even had two old Dodgers, first baseman Gil Hodges (who would retire in 1963 and begin managing the Washington Senators) and third baseman Don Zimmer.  The new team was in the National League and it wasn't the Yankees.

So Poppa rooted for them. 

Even though they stunk.

And I loved him.

So I rooted for them too.

Even though they stunk.

It wasn't easy.  In 1964 or so, years before Seaver arrived and  Gil Hodges returned, and long before the "miracle" of  '69, my parents decided to give me a baseball uniform as a birthday present.  What did I want, they asked, Yankees or Mets?  Mets, of course, I said, never wanting to be caught dead in a Yankees outfit in front of my grandfather.  Then I went outside in it . . .

And was laughed at by the best baseball player on the block.

A Yankee lover as it turned out.

In Brooklyn, no less.

Who woulda thunk that?

By September of 1969, however, no one was laughing at the Mets.  Armed with a pitching staff -- Seaver and Koosman chief among them --  that stifled opponents, their manager, Hodges (who had returned in 1968),  adroitly platooned lefties against righties (and vice versa)  at first base , second, third and in right field, suffered neither fools nor the lazy gladly, and made them winners.  They were in truth a schizophrenic team.  The same guys were rarely in the line-up three days in a row.  I don't know if You see this sort of teamwork among humans in general (probably not these days, at least here in the US), but on the '69 Mets it was magical.  Ron Swoboda and Art Shamsky, for example, who were platooned in right field, each had about 300 at bats that year and each drove in about fifty runs.  Roughly the  same was true of Donn Clendenon and Ed Kranepool, who were platooned at first base. And Ed Charles and Wayne Garret, platooned at third.

Gil Hodges was what a famous author down here, Roger Kahn, called one of the "Boys of Summer". They were all those beloved Dodger players in the late 1940s and 1950s -- Robinson, Pee Wee Reese, Duke Snider, Carl Erskine, Roy Campanella, Clem Labine, Don Newcombe, Billy Cox.  Hodges, however, was especially beloved.  He was known as the "one who stayed".  That was because, as You know, he married a girl from Brooklyn, bought a home and raised his famiy there.  He was also a regular at Our Lady Help of Christians, the Catholic parish in which his family lived. 

All of his kids went to the parish school.

Me too.

One of them, Cynthia, was in my class and once gave me a signed picture of her Dad. 

So I always thought she was pretty cool.

As Tom Seaver will be the first to tell You, Gil Hodges made the Mets.  He was a total professional.  And a no-nonsense guy.  When the team's star left fielder, Cleon Jones, didn't hustle on  a ball hit to him during a game, Hodges walked all the way out to left field and pulled him from the game.  In baseball, just so You know, not hustling is a cardinal sin; it can cause all sorts of problems if it becomes a habit. Needless to say, Cleon never lacked for hustle again.  Hodges was also a great teacher.  He knew what he wanted players to do but had a way of getting them to do it on their own.  

(Part of that may have been owing to the fact that players were a little scared of him; at least that's what one of my friends was told years later by Art Shamsky.  You should ask. Also, and as a relevant aside, really a plea, Hodges should be in the Hall of Fame and the people down here who decide those things obviously need some help on that score. Twenty-five guys are in there who over time received fewer votes than he. In the 1950s, he led all major league first basemen in hits, home runs, RBIs, total bases and extra-base hits. He was an All-Star eight times (also more than any other first baseman).  And then, following seven seasons in which they finished either last or second to last,  he turned the Mets into World Champs, the only pre-free agency expansion team ever to do so.  Could You help here, please?)

Returning to 1969 . . .

It’s hard to put into words how special that summer was for kids like me.    But here's a little vignette that may help.

The World Series in those days was played during the day.  And the deciding  fifth game started in the afternoon of  a school day.  At Our Lady Help of Christians that morning, Sister Louise Claudia told our class that "Cynthia was out sick" and then chuckled.  Everyone knew Cynthia was at Shea Stadium with the rest of her family watching her Dad help make history.  Meanwhile, the nuns decided to make a little history of their own.  As the game started, they stopped class, rolled the educational TVs into the classrooms, and turned it on.  

As You know better than anyone, Catholic nuns in the mid-20th century were serious about school. They ran the places with iron fists, some of which my classmates experienced from time to time.  In my eight years in Our Lady Help of Christians, the only other time I recall classes stopping was on June 5,1968, when we all were marched over to church to pray for Bobby Kennedy.  This was different.  This time, the nuns were stopping school for . . .

A baseball game.

But maybe they knew something we didn't . . .  

Or You do.

One of my friends is John Sexton.  He is a former president of New York University, a former dean of that university's law school, and a former high school teacher who I met in 1973 at a high school summer debate institute at Georgetown University.  For years, he has taught a seminar at NYU called Baseball as a Road to God,  and in 2013 he turned that into a book with the same title.  In it, he makes the point that baseball, like You, is often "ineffable".  The ineffable, he writes,  is a window on the "sacred", on You, a "mystery, both fearful and fascinating", and is "experienced, not defined, revealing itself in moments of intense feeling."  The setting can be "a house of worship or a mountaintop or a ballpark."

For him, the ineffable was "eff-ed" on October 5, 1955, when Gil Hodges caught the last out and the Brooklyn Dodgers won their only World Series (against the Yankees), overcoming a decade of ultimate loss with their one and only ultimate win.

For me, it was "eff-ed" on October 16, 1969, when the Mets overcame seven years of loss and I, along with my classmates, slid down the bannisters at Cynthia's school, yelling ecstatically alongside our teachers, the equally ecstatic nuns.

From the school, I ran to Poppa's house.  

In the years that followed, the Mets muddled along, occasionally great, often frustrating. They won again but I don't think they were ever as miraculous or ineffable again. In 1989, another former university president and baseball lover, Yale's Bart Giamatti, wrote a book called Take Time For Paradise.  In it, he said "I believe we have played games, and watched games, to imitate the gods, to become godlike in our worship of each other and, through those moments of transmutation, to know for an instant what the gods know."

So thank you.

For Tom Seaver.

For Gil Hodges.

And for the '69 Miracle Mets.

Sincerely,

One Boy That Summer.

STOKING VIOLENCE

So, it has come to this.

Monumentally inept in confronting the coronavirus crisis, impeached for trying to bribe a foreign government, commuting the prison sentence of the felon who might have sunk him, confirmed as Russia's colluder-in-chief by a bi-partisan Senate panel, trailing in every poll taken for most of this year, illegally staging the Republican National Convention at the White House, obtaining no bounce from that week-long lie-fest in any case, narcissistically programmed  to care only and always for himself, and able to look evil in the eye and welcome it so long as evil returns the favor . . .

Donald Trump has now settled on the only means left to create a possibility of re-election.

He has decided to stoke violence.

As anyone with a functioning news feed knows, Portland, Oregon has been in the headlines for the past three months.  After the killing of George Floyd by Minneapolis police last May, protesters took to the streets of Portland as they did almost everywhere else.  For the most part, and as was also the case everywhere else, those protests were peaceful.   Less than two months in, however,  the federal Department of Homeland Security (DHS) deployed irregularly uniformed officers to the city.  There were no names on their brown cammo fatigues and no insignia designating their federal department or service.  They were armed with Trump's egotistical weapon of choice, the over-sized, sharpie-signed Executive Order suitable for framing, and were told to protect Portland's federal courthouse from ostensibly violent anarchists.  

The federal force was neither invited by the state and local authorities nor needed in view of the actual threat.  Indeed, inasmuch as what Trump, Acting DHS Secretary Chad Wolf and Attorney General William Barr called "anarchy" was principally vandalism in the form of spray-painted graffiti on the courthouse's walls, the threat was de minimis.  Comprised of some customs and border patrol agents along with personnel from the US Marshalls Service, the force also wasn't trained in crowd control or in policing would-be riots.  Their  presence  predictably resulted in larger protests but instead of de-esclating tension, which is more or less Policing 101 when faced with hostile or emotional crowds, Trump's troops exacerbated it.  

Protesters were arrested without probable cause and then ferried away in unmarked vans to makeshift holding facilities.  

When the famous "Wall of Moms" stood between  federal officers and the protesters, the mothers were tear gassed.  

When a Navy veteran approached just to talk, the feds beat him.  

And when one protester merely stood  up . . .

They shot him.

Eventually, Trump's ersatz cops had to leave. The sideshow of their presence hadn't goosed the President's numbers (which was really all he wanted in any case), and Oregon Gov. Brown had state police guard the federal courthouse and shoo away the graffiti artists. Though DHS denied it was leaving, it stood down nonetheless.  Though the protests continued, their size shrank and none were violent.

Then came Kenosha.

There's a -- and now, it seems, almost inevitably -- "bad dream" quality to the events in Kenosha this past week and a half.  I do not know what happened as the police shot Jacob Blake seven times in the back on August 24. All I have seen is the video taken by an on-looker.  In it, Blake is running around a car and moving into the open passenger-side back door toward the rear seats.  One of the cops is grabbing his shirt, holding it tightly enough so that it rises off Blake's lower back.  None of us -- the great unwashed and uninformed -- knows what, if anything, Blake is saying, why he is doing what he is doing, or what the police are telling him, and investigators are saying nothing other than "be patient". His family attorney  has issued  a statement, and in it he asserts that Blake was de-escalating a domestic disturbance, was tasered by police, and was circling the car to check on his children when he was shot.  

Their view is that the shooter should be arrested.

But  even if that is not the whole story . . .

Can we do a reality check here?

Blake was surrounded by police, one of whom had his hands on him.

Did they have to shoot him seven times in the back?  Were they in imminent danger? 

Lots of folks who afterward took to the steets -- yet again --  think not.

And that is not unreasonable.

What happened in Kenosha thereafter, however, most assuredly is.  

Police vehicles were vandalized.  The windows of Kenosha's  public library were smashed.  Dump trucks were set on fire and Wisconsin's Governor had to call out the National Guard.  When the city's Mayor tried to hold a press conference with community leaders outside the city's Public Safety Building, he couldn't.  When he tried to get back inside, protesters blocked the door.  A cufew was imposed but looters burned stores even as Blake's family called for peace.  And then, in the middle of it all, 17 year-old Kyle Rittenhouse drove from Illinois with his AR-15 assault rifle, joined other armed individuals and self-appointed militia in the streets of Kenosha, and killed two people while  injuring a third. Afterward, he walked by police, hands high and assault rifle akimbo.  Though it is illegal for a minor to openly carry a firearm in  Wisconsin, he was not arrested.

Rittenhouse claims he went to Kenosha to protect property and help any who were injured.  He arrived with a friend (who was also armed).  On the night of their arrival, they stood outside a mechanic shop that he claimed had called for help. "Our job," he explained, "is to protect this business". That, of course, isn't his job at all. His lawyer claims Rittenhouse opened fire in self defense after being accosted by "multiple rioters".  The criminal complaint filed once Rittenhouse actually was arrested back in Illinois the next day says he opened fire after a plastic bag was thrown at him.  He has been charged with homicide.

Four days later, back in Portland, there was another killing.  This time, as a caravan of armed Trump supporters rolled through the city confronting BLM protesters,  one of those supporters was shot and killed.  The shooter has not yet been identified or arrested.

A normal President faced with all these tragedies would call for calm, implore people to leave their guns -- as well as any armed adolescents -- under lock and key at home, let the police protect whatever and whoever needs protecting, and deplore violence in whatever political garb it comes clothed.

Trump, however, is not normal.

In the past two weeks,  he has (falsely) accused the "radical left" of being responsible for the on-going protests in Portland and those in Kenosha, and regularly exaggerrates (to the point of caricature) the extent of violence in the nationwide BLM protests as a whole.  He has praised uninvited militia and the armed Trump supporters who have shown up in both towns ostensibly to protect property and restore order, neither of which they accomplish or are in any way good at.  He defended Kyle Rittenhouse, claiming -- with no evidence whatsoever -- that the teen acted in self-defense, and during last week's RNC, his now former counselor, Kellyanne Conway, made his real views explicit. "The more chaos and anarchy and vandalism and violence reigns," said Conway, "the better it is for the very clear choice on who's best on public safety and law and order."

So, reduced to a bumper sticker, Trump's campaign  is simple -- "If the streets burn, Trump wins."

Yesterday, Joe Biden went to Pittsburgh to speak in a converted steel mill.

He condemned violence: "Rioting is not protesting," said Biden.  "Looting is not protesting.  Setting fires is not protesting.  It's lawlessness, plain and simple. And those who do it should be prosecuted. Violence will not bring change.  It will only bring destruction.  It's wrong in every way."

He condemned Trump:  "The president long ago forfeited any moral leadership in this country.  He can't stop the violence because for years he has fomented it."

And then he made clear the difference between the two:  "I look at violence and and I see lives and communities and the dreams of small businesses being destroyed . . . Donald Trump looks at violence and sees a political lifeline."

At this point, roughly 60 days before the election, the choice is pretty simple.

There's Joe Biden,  the man who would be President.

And then there's Donald Trump, the man-child . . .

Who can't act like one.