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.