WordPlay - Populism, Problems, and Solutions

The Difference Between Judicial Conservatism and Political Conservatism - A Primer

It's apparent from the deplorable reaction of the media elite to the extraordinary Supreme Court decisions that ended the 2022 term that many of them misunderstand the difference between political conservatism and judicial conservatism.

Political conservatism is a philosophy pertaining to public policy that it seeks actively to implement by government or social action.

Judicial conservatism is an entirely different animal. The central tenet is that the making of social policy is not - or should not be - the province of the judiciary, that social policy is the business of legislatures. Judicial conservatives may be political conservatives, but if they are true to the philosophy of judicial conservatism, they do not implement conservative public policy. 

The pundits misunderstand the difference. Thus, you have otherwise sensible individuals asserting that the Supreme Court (in Dobbs v. Jackson Women's Health Organization) banned abortion nationally. Nothing of the sort - as the last paragraph of Alito's opinion for the majority, the opinion returns the issue to State legislatures, i.e., to the people. The decision is not itself activist. What it did was reverse one of the most jurocratic decisions in United States history. That's what judicial conservatism actually is - a refusal to make policy in arenas that are properly the subject of popular decision making.

As the Democratic elites are beginning to realize (and should have known from the outset), politically, the decision is very bad news for the GOP. It's the gift that keeps on giving. For years, Republican politicians have proposed, and even enacted, statutes about concerning abortion that are totally at odds with actual public attitudes, confident that they'd never have to put their money where their mouth is, because of Roe. But the reality is that a sizable majority of the public firmly believes in an unconditional right to abortion in the early stages of pregnancy, with increasing reservations as the pregnancy proceeds. That's pretty much the pattern of law throughout the entire Western world. The Republican Party is likely to pay a high price for all the blathering it has engaged in over the years, free of charge thanks to Roe. Now the piper has to be paid.

The shrill cries that the Supreme Court has become an undemocratic institution making its own brand of public policy just won't fly. Even the First and Second Amendment decisions, in which the Constitution requires the Court venture into the realm of social policy, are severely limited. The gun case, New York State Rifle and Pistol Assn, v. Bruen did not target gun regulation so much as regulation that conferred unlimited discretion on licensing authorities. New York and other States have responded accordingly. Kennedy v. Bremerton School District turned on the personal and private nature of the coach's activity, though a number of commentators have disgraced themselves by asserting that the football coach used an element of coercion with respect to his players. (If he had, the case would be Constitutionally trivial.) That factual element was conspicuous by its absence in the lower court proceedings, and only imported into the record by the school district at the appellate level when the awkwardness of its position began to become apparent. What it means as a practical matter is that the Bremerton case is limited to its facts.

Alexander Hamilton famously described the judiciary as the 'least dangerous branch of government'. Judicially conservative courts actually conform to that description. The real complaint of media elites is not that courts are making policy, but that they are not. Liberal policy makers, some of which I support, are actually going to have make their case before the people, rather than friendly judges. Horrors.

David Leonhardt's Toxic Racialism

I receive daily email notifications of the columns David Leonhardt writes for the New York Times. The one I received a few days ago (linked here) could not have been a starker, more frustrating example of the compulsion so much of the intelligentsia to racialize every contemporary issue, even when that devolves into throat-cutting, shoot-yourself-in-the-foot politics and policy. 

The column was entitled 'How To Close The Racial Wealth Gap', and discussed various proposals to narrow the perceived inequality of wealth between Black and White.The article cited the fact that median wealth of a White family is $176,000 and went on from there. It is impossible to imagine an article or approach that missed the point more completely.

The major issue confronting our nation is the wealth gap, all right, but it is the gap between the ultra-wealthy - the 1% - and everyone else. It is not one that is defined by race. If wealth were distributed in any kind of proportional manner among the population, Leonhardt's approach might have some validity. But the distribution is in fact ludicrously skewed, which is why Leonhardt's racialism becomes irrelevant and even toxic. Let me illustrate.

Below is a simple 10x10 grid.

You will note that I have filled in the box on the extreme right. That represents the 1% who (per Thomas Piketty) now receive more than 20% of the GNP and almost certainly control an even higher percentage of the nation's accrued wealth. There is no question that they are predominantly Caucasian and Asian (er - the success of Asian ethnicity rather cuts across the racialization theme, but never mind), though there is a smattering of African-Americans. Ideally, the graph would show more continuum, becoming less and less dark as it spread out from the topmost right corner. But you get the idea.

The point is that the wealth differential that causes the racial gap isn't distributed ratably. It is concentrated in an extremely small fraction of the United States population, a fact Leonhardt either overlooked or chose to ignore.  The fact that the privileged 1% is not racially equal doesn't do anything for the millions of Caucasian families that stand outside the charmed area. They worry about how they're going to afford homes, educate their children, and resent bitterly the privileges that elite education and affluence provides the privileged. (Do Leonhardt and the other Democrats who meme this theme delude themselves that there's some sort of racial loyalty here? That struggling middle-class families console themselves with the thought that at least there are a disproportionate number of Caucasian families at the top? Are you kidding me? A disdain for elites of all kinds, and particularly the wealthy, has been a feature of American society from pre-Revolutionary days on.)

I can illustrate the point another way, with a thought experiment. You could close that median gap pretty quickly by elevating a small percentage of lucky African-American families into the charmed circle - those who win the lottery genetically, either with intelligence, athletic ability, charm and entertaining skills, or maybe the actual lottery. When we do that, we of course change the median as a matter of statistical fact. Hooray! Racial wealth has now been equalized! The 1% now contains the right number of African-American multi-billionaires.

Does Leonhardt think for a second this phantom equality matters to that huge majority of Black families left out? Not a jot. They have no more racial loyalty than the Caucasian families described above. What matters to them are the futures of their own children, their ability to maintain their own standard of living. African-Americans winning the billionaire war could matter less to them. It's still less than 1% of their number. It don't signify.

Leonhardt's column reaches the absolute nadir when he discusses a proposal of Cory Booker's for the issuance of baby bonds. I quote:

One political advantage of all of these ideas is that they are race-neutral: They disproportionately help African-Americans because the policies are economically targeted. 

Great, just great. Leonhardt is describing a program of general application that would have the effect of bolstering and maybe enhancing the endangered American middle class. Everyone who has given thought to the matter, from the Koch Brothers to Elizabeth Warren, would applaud that goal, even if they might have reservations about funding, administration, etc. But Leonardt can't champion a program of general application on its own terms. Instead, he has to find a racial or victimization hook to hang it on. Only then, as an afterthought, can he mention what should be the main point - that it helps society as a whole. You can only laugh or cry - I think of the New York Times joke headline:

World To End Tomorrow; Women, Minorities Particularly Affected.

But when you reflect on the implications to the big tent philosophy on which the Democratic Party used to pride itself, it isn't all that funny.

I'll drop the other shoe. If curing the racial wealth gap meant creating more ultra-rich and upper class African-Americans at the cost of reducing further the share of wealth of huge majority of Americans of all races, we would be going backward, not forward, in terms of the economic equality that actually matters. I do believe that Leonhardt and his ilk would probably agree with that proposition when put so starkly.  

But even so, he could not discuss the issue without finding a victimization hook. Heaven forfend we should actually discuss social action that benefits the larger fraction of society without regard to race, gender, or social status. (Why, some of them might even be Trump voters!) Even articulating an issue in big tent terms is secondary if it is possible at all. This one column could stand as a metaphor for the dilemma of the Democratic Party.

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Atul Gawande's Book 'Better'

A few years ago, I read Atul Gawande's book 'Better'. The book is a series of essays on a deceptively simple concept - a discussion of medical improvements and process that did not end or eliminate a problem (e;g. the Salk polio vaccine), but simply bettered the existing protocols.

There was, for example, a fascinating chapter on the APCAR standards for evaluating the health of newborns. It doesn't seem like much, because the evaluations of vitality are somewhat subjective. But the simple act of measurement, and the database it created has proved to be of inestimable value. (I was surprised to learn that the name is not based on an acronym, but is named after a genius woman physician of the 30's, forced by the gender prejudice of the day to give up surgery for gynecology.

But the book influenced my thinking in other ways. The notion of betterment simply as a desirable end seems to have disappeared completely from our modes of thought. The excessive partisanship of these days is death on half-a-loaf proposals, which are actually how most social progress begins. They've become as outdated as compromise. Obviously, no compromise is possible with the devil - and it that's how you regard Donald Trump, or some CNN host, or Mitch McConnell or Charles Schumer, or the NRA or 'gun grabbers', you are not going even to entertain any notion that the anti-Christ might propose. And you will never, never sit down with them. 

Far more than the particular and obnoxious personality of Donald Trump, and the excesses of his opponents, the loss of appreciation of the concept of 'better', of belief in middle ground solutions (compromise), and of a decent respect for truly diverse opinions seems to me the major issue that Western democracies face. Gawande's book illustrated that beautifully.

Seven Racial Anecdotes

I dealt with race and racism pretty much constantly between 1972 and 2007, with greater or lesser wisdom. At any rate, here are some stories. Make of them what you will.

1. The Twofer. Sometime in the mid 70's, when I was public defendering and doing motions, one of our female deputies came into my office, mad as hell. Her client had been Black. She'd done jury selection in the conventional way, getting the conventional responses, and the case had gone forward without incident. But after the verdict (guilty), several of the jurors approached her. It seems that the moment deliberations had begun, one of the jurors who'd done a butter-wouldn't-melt-in-my-mouth number uring voir dire had sat down and said, first thing, "Only a stupid n----r would be dumb enough to have a dumb b----h for a lawyer." Crass racism and sexism in one sentence. A twofer.

My colleague and friend, who was in fact an awfully good lawyer and went on to a distinguished career as a Superior Court judge, was incensed, as was I. The reason was not just the prejudice, but the lying about it during the selection process. Recall that the jury panel is sworn, and these answers are given under oath.

But what happened in the jury room after that, is what was interesting. The other 11 jurors were infuriated. The initial reaction was to walk straight back into the courtroom and announce a 'not guilty' verdict. Unfortunately for my colleague and the defendant, cooler heads prevailed. They decided, despite the presence of one a------e that they were duty bound to examine the evidence, which is almost never good for a public defender's case. Worse than that, this was what we used to call a 'sit through', meaning that there was no defense, that in the face of overwhelming evidence, the defendant was demanding a trial out of sheer orneriness. He wasn't particularly dumb, but he was sociopathic. The deliberations went on without any input from the racist, who was apparently too intimidated to say another word. But it did result in a guilty verdict. The jurors then informed defense counsel, so that the offender could be properly disciplined.

Which he wasn't. The administration of the PD's office in those days was incredibly timid. My colleague and I wanted the matter referred to the DA for possible perjury prosecution, or the trial judge for contempt proceedings. You just don't lie during voir dire. But the higher ups wanted nothing to do with that. We could have run a new trial motion as there is some conduct in the jury room so egregious that it's not protected by the veil of secrecy. But my colleague really didn't want to do that. Despite the glaring misconduct, the verdict was a fair one, and the trial judge (though pretty upset by the juror) not disposed to grant a new trial. So it died aborning.

The point of the story isn't the creep at its center. These we will always have with us. It's the other 11 jurors.

2. The Wrong Man. The second story occurred about the same time. I had a friend, a really good trial lawyer, who was a Black Southerner. He took racial issues as seriously as you'd expect – he was one of the first in his town to ride the public transit in his town after it was integrated, in the Rosa Parks era (though my recollection is he was Georgian, not Alabaman.) One day he came back to the office in a state half-way between tears and laughter. He was defending a White guy, an inmate who for some reason had not been dressed out. (Maybe the defendant refused – it happened.) He was in the middle of jury selection, when a female juror, answering one of the standard questions, politely said she should not sit on this jury because she was prejudiced against Black defendants.

“I'm the lawyer,” my friend says. “I'm obviously the lawyer. The judge had introduced me to the jury. For God's sake, I'm sitting there in a three piece suit and a power tie.” (He was always well-dressed.) “My guy is beside me in an orange jump suit, with the 'SANTA CLARA COUNTY' printed on it. And she can't see beyond the race!” As I said, it was laugh or cry.

This did not require any major lawyering, as the juror was promptly informed of the error, turned about a thousand shades of red, and was excused. The trial went forward – another case in which the double damned jury decided the case on the evidence, and defendant and defense counsel were condemned to woe and misery.

A few days later, we were post morteming the trial. My friend referred to the incident and wondered whether he'd made a mistake in not fighting to keep the juror. What, you are saying, had he lost his mind? Not at all. What he was thinking is that the juror had actually said she was prejudiced against Black criminals. But this particular defendant was White. So she wasn't going to be prejudiced against him – that is, once she had figured out who the defendant actually was. She was honest enough to admit it out loud (unlike the SOB in story one.) And she'd made such a damn fool of herself that she might just have bent over backwards to be fair. Such was his speculative thinking, anyway. Public defendering legal practice has only one operative principle – will it work? We'll never know because it is out of the question to keep such a juror. But it is typical of the way racial issues play out. Mostly you try to maneuver around or neutralize them. On occasion you try to exploit them.

3. The Upper Class. The worst expression of racial prejudice I ran into in those years did not occur in a formal setting. I was out at a Stanford football practice in late December of 1977, watching Bill Walsh get the Cardinal ready for the Sun Bowl. A nice enough older guy came up, about the same age I am now, and we chatted enthusiastically about Darrin Nelson, James Lofton, other Stanford stars of the day, and the general high spirits of the team. The Crime of the Century that year (sic) was the Chowchilla kidnapping, in which a trio of armed guys had waylaid a school bus and buried it (and forty kids) underground. The perpetrators turned out to be a trio of disaffected rich kids from wealthy families up in the San Mateo-Hillsborough area. The crime actually occurred in 1976, but the perpetrators had only recently been sentenced (to LWOP, subsequently reduced to life.) The subject did not come up until my new friend asked what I did for a living. It turned out that he knew one of the wealthy families and was emotionally invested in the sentencing He leaned forward.

“Tell me,” he said, nudging me, with a conspiratorial glint in his eye, “would these kids have been sentenced so harshly if they were Black?” I think he expected me to confirm his belief that they'd have received some sort of wrist slap if they hadn't been white and rich.

I tried my best to be polite, but I must have reacted because I was absolutely dumbfounded, at the monumentality of this delusional thinking. Then I told him the truth as I saw it, that when you hijack a school bus and bury 40 children, you have transcended race, class, gender, and even planetary origin. You are going to get clobbered, no matter who or what you are, because you just hit the top of the charts. I also said that the criminal justice system is far more race neutral than non-participants realize, but it sure as hell isn't class neutral. It strongly favors upper class defendants, and particularly White upper class defendants. He looked at me with his own version of incredulity, then waved his hand in contempt, turned his back, and walked away. I had been dismissed, as One of Those, along with any other input that didn't meet his preconceptions.

Wow, I thought. What goes on in Hillsborough? There is such a thing as a limousine conservative (if not reactionary), completely divorced from reality.

4. Unlikely Hero*. I've asterisked this because it's probably the most important one. We have to jump 12 years ahead in time, to 1990, when I rejoined the civil service as a prosecutor. The first case I tried was a routine petty theft in Los Gatos, inconsequential, batting practice, so to speak. But it took some really unusual twists and I have never forgotten it.

The theft had occurred at an upscale bar, at a late hour. The place was a watering hole for the younger people, partiers, and specialized in exotic, pretty stiff drinks. The defendant, a young woman, had pocketed another girl's purse, then left. When the victim noticed it was gone, her boyfriend chased after the culprit, found her, made her come back to the bar, and the missing purse and some personal items were inside the defendant's purse. An ice cold case, and a good starter for me, though I wondered why it was being tried at all. (It turned out to be a vanity trial, at the insistence of the defendant's mother.)

It had been 13 years since I'd tried a criminal case. I had forgotten so much I had to approach the bench and ask the trial judge which side of the courtroom to stand on. (His face was a real picture.) The defense attorney was well known, and competent, but based on this experience and subsequent, grossly overrated. We picked a jury in nothing flat. One of the members of the panel was THE Chief Probation Officer of Santa Clara County, the guy responsible for all probation and sentencing services. You'd expect this type, who has to be a law-and-order guy, would be the first one taken off the jury by the defense. But the defense unaccountably left him on. I knew something was up and wondered what.

I found out with the second witness. (This was a 'cite-and-release' case, meaning the cop had written a citation and released the defendant, meaning there was next to nothing in the way of police reports.) The first witness was the victim, who turned out to be a youthful and extremely attractive young woman, aged 21, the sort who could easily excite jealousy or envy all on her own. Her testimony was non-controversial. The second witness was the boyfriend, who had retrieved the stolen purse. As it happened, he was Black. and in his mid 30's.

It's good trial procedure to raise issues of this type with the jury during voir dire, as I have indicated above, to eliminate anyone with a problem with that sort of thing. But I hadn't known this fact, and the defense had laid low. So this aspect of the case came as a complete surprise to this mostly-Caucasian, a-little-Asian jury.

The plot thickened. After the boyfriend had told his story easily and naturally, the defense cross-examined. The boyfriend had an unusual surname, one defense counsel recognized as that of a family, most of whose members had been in trouble with the law. He asked if that were the young man's family. Yes, it was. Stretching good faith to the limit, and maybe beyond, he asked the witness if he had been convicted of a felony. Yes, he had, twice for cocaine possession and once for . . . theft. Then came a series of questions implying that for reasons of his own, he had secreted the purse and produced it to make some sort of impression with the pretty victim. For a lot of evidentiary reasons too detailed to relate, the suggestion was absurd, but raw meat for anyone with a racial agenda looking for an excuse.

And let me throw one last log on the fire. There was a significant age difference between the girl and the guy – not enough to be obscene, but enough to raise an eyebrow. She was just out of her teens. He was in his mid 30's. Forget race for a second - if you know any families who would be thrilled with their young daughters keeping company with much older men with a criminal record at sophisticated bars, let me know. Because I sure don't know any.

So anyone with a racist bent who wanted to characterize this as Innocent White Girl Corrupted by Sophisticated Black Con had all the ammunition he or she would need. All of this hit the jury completely cold. Had I known the boyfriend had a criminal record, or his age, the jury would have been alerted to that, too. But the case hadn't been prepped at all by the regularly assigned deputy, and I'd taken it on about an hour's notice. So all of this was coming to the jury as a total surprise.

The witness answered all this beautifully, admitting the convictions, but denying without any fuss that he'd had anything to do with the theft. He had a good job at that time of his life, and said straightforwardly that his convictions were way, way behind him, ancient history. But all the ingredients for anyone with a racial bias were there. He was a convicted thief, and he had handled the stolen property. Anyone who had a racial bias he or she wanted to express could claim to have a reasonable doubt, with no one the wiser. It would not have been in good faith, but who could say him or her nay?

So I was a mite worried when the jury went out. As it happened, however, they were back in an hour with a guilty verdict, which is about all the time the relevant evidence in this absolute no-brainer of a case justified. Afterwards, a few of them hung around. I was mightily curious about how these totally unexpected developments had hit them. What I learned was that – to a man and woman – they had been . . . . utterly outraged by the impeachment of the boyfriend on felony convictions. They all regarded that tactic as completely below the belt. (The Chief Probation Officer was one of the most vehement.) None of them had snapped at the racial bait even for a second. This is only one case, circa 1990, but it has stayed with me – because I think it's paradigmatic.

I have no doubt that in an unscreened panel of even that small size, you had more than one who had deeply negative feelings about interracial couples, particularly Black men and white women. There's a lot of that out there, then, now, and always. But there wasn't one of them that was sufficiently distracted by however they felt to lose sight of the facts of the case, or fail to judge the individuals as individuals rather than racial stereotypes. THAT, to me, is the ultimate bottom line – not the racial feelings, one way or other, but the ability to bring the individual into focus as another unique human being, As with the 11 jury members in the first story, whatever racial notions this jury may have had stayed firmly in the background.

And this is true for just about every jury I have ever been involved with. More on these matters anon.

5. The Little Boys in the Photograph. During the 1990's, Santa Clara County high tech companies were hit by a really obnoxious pattern crime. On a given day when a large shipment of pricey components was expected, gunmen in ski masks would take over the loading dock, seize the shipment, and drive off with it. Scary stuff. We came to learn this was a rainbow coalition crime – basically, the intelligence as to when the shipment was due was obtained from delinquent gamblers, nearly always Asian, paying off a debt, leaked to someone who organized the robbery. The actual perpetrators were either Vietnamese locals, or occasionally Crips who came up from Los Angeles for that purpose. The goods moved very rapidly out of state or down to Los Angeles. For a while, these were extremely successful crimes. There were a few dozen instances.

The one I am going to tell you about was a variant of this m.o. A Fed-Ex driver delivering a huge shipment of goods (valued in the high six, low seven, figures) was carjacked by three African-Americans. He was forced out of the cab with at gunpoint, on to a busy expressway (fortunately uninjured). The perpetrators then took off for parts unknown.

Which is where the scheme became unglued. The perps thought they'd picked a vacant lot out of eyesight, but in fact an office worker severally stories up and a couple of blocks away looked out his window, and saw three Black males moving cartoned boxes as fast as they could out of a Fed-Ex truck, into a rental van. This looked pretty suspicious, so he phoned the police. But before any oficers could arrive, the men and the van were gone. These were very efficient operations.

The SJPD sergeant who was on the case was really good. He knew the pattern of the crime cold. Telling his wife he was going to be late for dinner, he drove down the freeway to the major exit to the I-5 Interstate, and waited. Sure enough, about 45 minutes later, along comes the rental van (matching plates) and three African Americans with matching descriptions. He calls for fill from the California Highway Patrol, a little convoy is formed, and they make a major league bust along the road, undoubtedly drawing curses from every commuter on his way home that night.

My assignment was high tech, so this was my case, even though this sort of street crime was a long way from the trade secret theft I'd signed on for. The ringleader of the group absolutely refused to deal the case, so we got ready for trial. This was preceded by a motion to suppress evidence, on the ground that the SJPD sergeant lacked probable cause to make a stop. If your mouth has dropped open in wonderment at the apparent lack of merit here, you're right. The motion was a complete non-starter. However, the defendant had retained an eager young newly minted attorney, brimming with hubris and political correctness, who absolutely believed in it.

I went over to review the evidence with the sergeant. We'd taken pictures of the stolen components and returned them to the company (price degradation was a real issue), but we'd never been over the personal items seized from the defendant that night. There might be something there that helped the case. We opened the driver's wallet. There, right under the defendant's driver's license, was a portrait photo of two of the handsomest young Black boys you ever saw, faces gleaming, smiles broad – maybe 7 and 9, about that age, I think they may have been in parochial school uniforms, but I don't remember clearly. It was absolutely crushing to see that picture and know what was coming at that family - because this was a multi-million dollar theft, with a car jacking, a gun, and heavy, HEAVY duty time.

The hard boiled sergeant slammed his hand on the table hard enough to startle me. 'God damn it,' he said.

'Not your fault,' I answered.

'I need some time,' he said, and left me for a while. Right that second I do believe he was regretting he'd ever made the bust, despite the brilliant police work. I thought of the Rodgers and Hammerstein musical Carousel, which turns on a crime committed by the hero to raise money for his unborn daughter. I wondered if that's why the guy had gotten involved in the scheme. The sergeant returned. He knew and I knew, that there was no way you can write off a crime of this magnitude, no matter how nice a school photo. We said no more about it.

A week or so later, we had the suppression hearing. I put on the People's case as I've written it up here. The young defense attorney (a white guy, by the way) got up and rose to his full height. He waxed indignant. “Sergeant,” he said, “isn't it true that the only reason you stopped that van was because the driver and passengers were Black?”

“No,” my guy answered quietly and professionally.

“Isn't it true that you are prejudiced against African-Americans?” he continued, a little pontifically.

“No,” the sergeant answered, without emotion, and rightly so. Enduring random, groundless slander is part of the job description. It went on for a while in that manner. I looked over at the defense side, where a fair number of friends and relatives had come up for the hearing. They were all nodding in sad, solemn agreement. Their loved one was the victim of a racist police officer. (I don't for one second think that exemplifies the African-American community reaction to a stop of this sort. Anyone without a bias recognizes the difference between a random stop and one on specific descriptions, which this one was. This was a personal and familial reaction, a rationalization, actually, to which I am somewhat sympathetic, to the devastation this arrest and prosecution was going to wreak.)

The defendant did go to trial, went down hard, and ended up with 15 years. I'd bet money that on the yard he blamed the racist cop and the racist judge who let him get away with blatant racial profiling.

But I see it a little differently.

(N.B. This one I novelized a little bit, for dramatic effect. But the gist of it, including the officer's reaction to the photograph, is accurate.)

6. The Engineer with the Sunglasses. Jury issues have occurred frequently in this brief reminiscence, first because it is where you see the community in action, second, because it is the area where biases of all types at the trial attorney level are apt to appear. Every trial attorney I have ever met, including yours truly, wants a jury of people just like himself. My ideal jury would be 12 of me - not just white men in later middle age, but actual clones. I'd know how they think, what arguments they like, what doesn't work – it would be wonderful.

Unfortunately, that's not the law. As it happened, I came to enjoy the challenge of rainbow juries, to such an extent that I developed a mild reputation for eccentricity in my willingness to accept just about anyone. I am going to close with two stories about jury selection.

The last major case I did, in 2002, was about as serious a case of Internet stalking as it is possible to imagine. Everyone in the case was Indian (from India). The defendant, a rejected suitor, had stalked and harassed his former girlfriend and her husband over a ten year period in both California and Michigan, spray painting their house in the dead of night, cutting car brake lines, etc. He'd been to prison once, in Michigan, but the incompetence of the parole authorities there had allowed him to get away with a series of harassments afterward. Finally, he moved to Santa Clara County, from whence he sent a 300 word, hair-raising, email (anonymous, naturally) threatening death by fire, castration, etc. The case cost a lot to try, but it was pretty important we get a conviction. I thought the danger to the young couple was growing, as this guy came more and more to believe in his immunity from detection. He was also becoming angrier.

Jury selection went normally. The juror I am going to talk about was a young, Black male in his late 20's, with a good job as a technologist in a local company. Race was no issue, but he bothered me a little. His answers on voir dire were so laconic that they stopped just short of sullen. Also, he was unmarried, which always worried me with a female victim, as you may have some misogyny kicking around some place. But the job was good, he was otherwise well socialized, and my thought was that – if he did have an attitude – that at the worst he'd be passive.

The next day, when opening arguments began, all sorts of big time warning lights began to go off. He showed up in sunglasses – which no one wears to court – and similar odd dress. But most of all, throughout the morning, he was showing off body language that stopped just short of contempt – swiveling away, from the court, turning his back on counsel, etc. I'm a little concerned that this description is inadequate, but the reader is going to have to trust me – I've done well over a hundred jury trials – and this was really unusual behavior. Every move this guy made seemed calculated to be an FU to the court and the proceeding.

Not good. The judge was an old friend but also old school. Like all good judges, he didn't care about the verdict, but he did care that we get a functioning jury. He was not at all on my page about jury inclusion, and had wondered before about some of my choices (though they'd always worked out.) This time he thought I'd goofed big time. I was quite worried he was right, as we had a lot riding on the case. So I did something I'd never had to do before, and checked the juror out – not on the criminal databases, but on Google and elsewhere. (This was 2002.)

Surprise, surprise – he turned out to be a graduate of an extremely prestigious technological University (MIT, if I recall correctly), and not just a good citizen, but an exemplary one. He'd won a couple of awards for his involvement in boys clubs and inner city youth organizations. He looked a lot different in the Internet pictures than he did scowling in the courtroom.

This did not end the issue – you can be a great person, and still have attitudes about the criminal justice system that disqualify you from jury service. But it did end any thought of doing more. All we had was a guy doing a great impersonation of Supremely Disaffected Young Black with Attitude – and we were going to have to assume that all that good citizenship was what defined him, not the courtroom demeanor. I told the judge I was going take my chances and let the matter go. I got the predictable disgusted look.

The case ultimately went to jury, with very solid evidence. In a relatively short time, we had the verdict we wanted. (Complete success, which is rare in my business, for the harassment stopped completely and the couple has been at peace ever since. I gave a version of a Godfather speech to the defendant at sentencing - 'if a meteor should chance to strike them . . . ' It must have sunk in.) The case had been interesting, and a few of the jurors lingered. Alas, the juror who had concerned me was not one of them. But I was curious how he'd acted during deliberations. As it turned out, fairly predictably – he'd been polite but distant, very quiet. At one point, he'd courteously corrected someone's misunderstanding of IP protocols, then remarked that the evidence in the case was overwhelming. He'd voted guilty on every ballot, which was what the weight of the evidence justified.

So . . . . an ideal juror. But I have always wondered what was bothering him during the presentation of the case. Something clearly was.

7. The Pear-Shaped Curve. I didn't fare so well in the last of these stories. The defendant was an executive with a major high tech company, and he was African-American (actually from the Caribbean). He was accused of embezzling some slightly out-of-date circuit boards which were, however, still current and serialized. The boards were discovered when his confederate was arrested, another African-American who belonged to the same congregation, an evangelical church in South Alameda County. The two had been observed moving something from the trunk of one car to another shortly before. So this was a pretty solid case.

The juror I am going to describe was the only African-American juror on the panel. He was in his late 30's, and a clerk at some company or other. Asked about biases towards the criminal justice system in general, he volunteered that he thought it was biased against African-Americans and that he'd been stopped a couple of times by cops that he thought were not justified. He said this with a mildly challenging, in-your-face, manner.

The challenging manner would be reason enough to toss him, but I was full of myself by that time, and decided to keep him. First, he'd been open about it, which to me meant he could be reasoned with. Second, he'd talked about disliking the police, but this was not a police-driven case – the core of the proof was corporate records. Third, both the defendant and the principal witness were African-American, so the case wasn't going to present like one lonely Black soul against the Man. Finally, I'd read more than a little about jury behavior, and knew that 11-1 hangs were extremely rare. (The recent trial of Barry Bonds had one count that hung on that division, but there were other counts with larger minorities, from which the lone holdout doubtless drew strength.)

Two other factors should have caused me to toss him, though. The first was entirely subjective. I didn't like him. (I'd been unable to connect with the juror in the last story, but I didn't get any impression at the time of jury selection that he was hostile, only distant.) The second I am setting forth in the interest of telling it like it is. The juror was another unmarried male, this in his late thirties, and fat to a point just short of morbidly obese – not from any easily recognizable glandular difficulty, but likely from years of overeating. Either factor by itself likely doesn't matter all that much, but together it adds up to a real possibility that the individual is isolated socially, a loner, not someone who's going to join the social consensus required in jury deliberations all that easily. So in addition to my loose dislike, there was the real possibility he was a social misfit, quite apart from any racial factor. That should have been enough.

I don't know how this strikes the reader, but in selecting a jury you have maybe five minutes to size some one up and make the best decision you can. A lot of this decision making takes place by default in a jungle of first impressions – most of which storm warnings I ignored in this case. Whatever the reasons, this decision turned out wrong, wrong, wrong. Even on the first day, my witnesses began reporting that he was rolling his eyes and making faces at them. This went on throughout the trial. The case went to jury without any evidentiary problems, and the jury got to 11-1 within a couple of hours. The lone holdout was you-know-who. The others pressured him for reasons, which is what's supposed to happen. He gave them reasons for a while, but had them blown out of the water by the other jurors. Finally he said he didn't believe the defendant was guilty, he wasn't going to vote guilty, and he wasn't going to discuss reasons anymore.

That's where it ended, hung jury, two days later. As the jury left, the holdout turned and gave me this long, smug look. Well, I guess I showed you. I don't know what exactly he thought he'd shown – cases in which the outcome is not related to any rational construction of the evidence are simply dismal generators of cynicism. They don't do anyone any good. His gesture had cost the County somewhere between one and two hundred thousand dollars, based on what it cost to keep a courtroom open for a day. Plus I had to go back to the Neanderthals in the office and admit, that while I still was going to keep selecting juries my way, they did have a point. The next day, I got two calls from infuriated jurors who felt their time had been wasted, and wondered what could be done about it. (Nothing.)

I don't know what the holdout juror thought his point was. But I am sure it made his next Double Whopper go down a bit more easily. (A little bitterness there).

The subsequent history of this case took some curious twists, which also bear on the racism – or lack thereof – in this society. But I'd like to make a couple of comments about the unanimity requirement in jury verdicts before I do. I love the jury system. Believe it or not, I think both the white racist in the first story, and the Black racist in the last, probably belong on the jury, and it probably does society some good to leave them there. The guy in the first story likely thought he was going to get a lot of approval and support for his crudity. He ended up in the corner with a dunce cap on (figuratively speaking), worrying about whether a judge was going to toss him in jail. That couldn't possibly have done him any harm. The Black racist wasn't so roughly treated, but he did spend a couple of days being berated by sensible, exasperated people. It had to have some effect. Again, not bad.

The problem is not that people like this have a voice, which they maybe should, but that the system gives them a veto, which they definitely should not have. My own thought is that changing the verdict requirement to 11-1 or 10-2 , which is Constitutionally permissible, would remove the necessity for trial lawyers to select 'perfect' juries, relieve the stress, and probably lead to more diverse and interesting panels. It would certainly make trial lawyers more willing to follow the law, which many at present do not. End of digression.

The case was retried, and I thought it would be pretty easy. Retrials usually are. Not so. To the amazement of myself and the trial judge, on identical evidence, the second jury acquitted the defendant as rapidly as the first had been ready to convict. I was amazed at first, but then I understood.

The defendant had testified at the first trial, and had not done well. He'd come across as pompous, arrogant, hypocritical, and without any easy answers to a lot of hard questions. At the second trial, more sensible advice had prevailed and he kept silent. The testimony from the first trial had been read to the jury, of course, but without the defendant in the flesh, sweating, writhing, and pontificating, it lacked the crackling dramatic force it had the first time. In its absence, the jury had gone straight to the other salient point in the case – the striking difference between the defendant (who in addition to being a ranking executive in his company, was a deacon in his church and had led a clean, blameless life to that point) and his confederate (who had a telephone book for a record.) Never mind that the inventory records showed beyond any possible doubt that Mr. Clean had indeed filched circuit boards from his employer and provided them to the Telephone Book. There was no way this hury were going to take him down on the word of the People's star witness. One juror told me afterward they hadn't even discussed the inventory records, which were indisputable proof of guilt.

At the time, I was more than a little nettled, as the defendant should not have been acquitted on this record. Over time, with the competitive juices subsiding, I've come around to the jury's way of thinking, One thing that had bothered me from the beginning was that there was no take out for the defendant. There was no evidence he'd ever received anything of value in exchange for the stolen boards. I expected to find it somewhere along the way, but in two trials it never turned up. His testimony was that his relationship with Telephone Book was only for the purpose of providing counsel (of the type a lay deacon in a church gives), which there is no doubt Telephone Book desperately needed. He also denied he had ever given the guy the stolen boards. He was lying through his teeth about that latter aspect of the matter, but it became more and more plausible that he'd provided them in some sort of misguided reclamation project. That didn't make him any less a thief as a matter of law, but it did mean that he was not 'in the life', so to speak – a thief, but a rather unusual one. Query whether destroying this guy's professional reputation over what was really a rather trivial theft might not have done more social harm than good. That was the way the jury saw it, anyway, and I am not so sure it wasn't right.

For those of you keeping racial score, the jury in the second case was almost entirely White. (Maybe there was an Asian or two, but no African Americans. None had been called on the random draw for that particular panel.) The defendant and his counsel were both African American. Everyone on the prosecution side (except for the confederate) was White. The judge was White, as was the prosecutor (me). None of this racial census meant a damn thing to the jury in its almost instant vindication of the defendant. This was in the 2003-2004 time frame, something like that.

I commented to someone once that if I did have to suffer a detriment in the form of potential prejudice as the defendant in a criminal prosecution, I would far rather be an upper-class Black than a dirt-poor white. This is the case I had in mind when I wrote that.

Conclusions: I call myself a Populist, which has drawn the occasional jeer, but I really am, and it goes down to the roots. Beneath the astounding diversity of cultures in this wondrous Nation lies an even more amazing commonality of values, once you scrape down to the root. I am fully aware that the Declaration of Independence and the Constitution did not repeal human nature. Fools and idiots like the ones in the first and seventh story we will always have with us. Nor will we ever escape completely the weight of history. Race, gender, and religious traditions claim us like a hand from the grave on the ankle.

But I do think that we have created the most open, tolerant society in history, given due allowance for the constraints of human reality. It is also my belief, based on my experience, that the vast majority of American citizens are able to judge individuals as individuals, regardless of whatever racial stereotyping they may have brought to the party. That's really the crux, the point in human interaction where racism either holds sway, or breaks down. These days, more often than not, it breaks down. That's the moral of the 4th anecdote.

The Great Beast

  I call my politics Populist. Forty years of working with juries, the American public at its best, will do that to you. I trust popular will, popular judgments, popular values. That makes me unpopular, because populism itself isn’t very popular. But so be it.

The populism I’m talking about originated with Abraham Lincoln, who built the building on the foundation of the Declaration of Independence. It swept out of the Mid and Far West in the second half of the Nineteenth Century, with an insistence on fair play, tolerance, the rough equality of all men (sic), and a deeply rooted suspicion of every form of privilege or social status. There really wasn’t much more to it inb essence than that, though, God knows, the political flowerings of those simple roots are varied and complex. Though it was undeniably racist and sexist at the start, the transformative power of mass media changed those primitive attitudes decisively a long time ago.. These days, it has progressed to a universalism so far beyond the pronouncements of the intelligentsia that the elite can’t (or won’t) comprehend how far advanced it is. In terms of racism, or sexism, ot this-ism, or that-ism, it doesn’t have attitudes anymore. The issues have disappeared. These days, it literally doesn’t give a damn. There are a great many public intellectuals in the US who refuse to come to terms with that.

Populism is not a system of thought, just a loose collection of values, a respect for openmess, tolerance, sympathy and so on. Many of the attitudes that emerge are completely, enchantingly inconsistent with each other, and who cares? Thus, for example, the Great Beast believes that society should treat everyone the same, but give due respect to the individuality of everyone. Put those two sentiments side by side, and think about itfor the second. The government should take care of basic needs of everyone, but should not intrude on anyone’s life. That’s also an interesting pair of concepts to twin.

In short, we are not talking about consistencies, foolish or not. We are talking (to repeat) about a loose collation of values, which no one has ever tried to organize into a formal philosophy because every one knows it can’t be done. So a self-professed Populist has to live without the comfort ofany system of thought and a basic acceptance of some of the most cornpone formulations imaginable. Thus, Aunt Eller in Hammerstein’s Oklahoma sings an anthem:

I’d like to teach you all a little sayin’ ,
And learn the words by heart,
the way you should, I’m not claimin’ to be better than anybody else -
But I’ll be damned it I ain’t just as good!

Or Frank Capra’s Jefferson Smith on the floor of the Senate:

Because I wouldn't give you two cents for all your fancy rules if, behind them, they didn't have a little bit of plain, ordinary, everyday kindness and a - a little lookin' out for the other fella, too...

Pretty homey stuff. Nothing that you can reformulate as a premise of some coherent. Comprehensive Theory of Everything. Yet it swept out of the Western United States in the late 19th Century, overwhelmed the crude monopolies of the day, confronted and defeated the decadent repugnant, European nationalism of the 19th Century, transformed the crude laissez-faire capitalism of the day into socially responsible institutions with which we are all familiar now, and crushed the twin Hegelian monsters of National Socialism and Communism in turn. It’s populism, which its insistence on the social equality of all human beings - ‘I’ll be damned if I ain’t just as good!’ - that has eradicated racism and sexism in the West, and not any pronouncements of the United States Supreme Court or the European Union.

At the end of the day, adherence to Populism as a political philosophy comes down to two central tenets - (1) a belief in the essential benevolence of the mass of human beings, and (2) a belief that popular judgments are essentially sound (or at least much sounder than judgments made by the various elitist alternatives). My playful term for the American public is the Great Beast - possessed of no intelligence, but infinite wisdom. It never knows why it’s going, or where it’s going, but it’s almost always gets to the right place. ‘Almost’, because nothing human is infallible. But if history had followed the advice of the New York Times editorial board, or Wall Street Journal, or the faculty of Harvard University, we’d all be broke, or speaking Russian, or what not. The Great Beast knew better. It didn’t know why it knew, but it did.

Alas, nothing in any meaningful blog can be all sweetness and light. I do intend in future posts to take up some specific causes, and without any promise of charity.

(a) The major issue facing the United States is class and the division of wealth, not race or gender. It’s serious, but it’s a problem, and only a problem, not a crisis. We can do something about it short of revolution. My own solution is a switch of the basic annual tax base from income to wealth, coupled with a truly substantial estate tax. I’m going to make any number of posts on the net wealth tax, from the ultra theoretical to the issues of actual administration. I’m something of a voice in the wilderness here, but the topic is critical, the issues present a fascinating intellectual game, and . . . someone has to start the ball rolling, and it might as well be this blog.

(b) Second, I’m going to devote considerable time to the uses of Big Information as a tool to solve, or at least better, some of the social problems we do face. I am very, very tired of playing defense to the likes of Edward Snowden, Ron Wyden, and a host of other cynical Luddites who have deliberately reversed the polarity of the new information world. Its potential for social good is far greater than otherwise, but you would never know that from the public dialog of the last few years. Every new technology can do social harm or good, depending on how it’s used. But you don’t stop building airports because an airplane can be used to drop bombs as well as fly passengers. But that effectively - not building airports - is what a sizable fraction of people who should know better are advising. That’s absurd.

(c ) Finally, and most controversially, I believe the racial tropes with which most Americans grew up have outlived their usefulness. That opinion flies completely in the face of the conventional wisdom most of us grew up with, particularly we Baby Boomers. But any critical look at the culture shows that to be the truth. I by no means assert that the United States has resolved the issue of race. But these days it shows its face in the form of the toxic sociological mess left behind, first articulated by Daniel Moynihan in the 60’s and observed these days by such journalists as Jill Leovy in ‘Ghettoside'. I also do not mean that mainstream society does not have a moral obligation to address those problems, because I think it does. To that extent I believe in reparations.

But it also means I have no patience with the entrenched personalities in the MSM who insist that a pervasive institutional racism still exists in the United States. That’s absolute nonsense, and belied by just about every statistic and cultural observation available (not the least of which is that few if any of the spokespersons has experienced any racial barrier of any kind in their own lives). That would be simply an interesting factoid, except that the same clique has managed to obscure the REAL needs both of poor African-Americans and others, and promote a racial divisiveness that does no one any good and is also wildly out of date. But more of that anon.

So let’s get on with it. First up is immigration and terrorism. The Great Beast in my view is always sympathetic to refugees. But neither does it want to be terrorized. It never had to be ‘either-or’. There are solutions.

It Really Doesn't Matter How the System's Rearranged . . .

I have not posted much about the debate over health care, mostly because the real issues are so nuts-and-bolts that anyone who does not have a clear understanding of how the system works (such as me) is well advised to stand clear. A little learning is indeed a dangerous thing. But the arguments became so heated and positions ultimately defined with so little flexibility, that a larger perspective may be useful - and mine tend to be ultra-large. So here goes.

Public Socialization v. Private Socialization. I have friends and family members who view the entry of the Federal government into the area of health care as an ominous and completely negative change in the structure of US society. But step back for a second for perspective. Socialized medicine in this country is nothing new. The system of health care first introduced in informally World War II, and codified in the Internal Revenue Code of 1954, of near-universal employer-paid health insurance, is nothing else than a system of private socialization. Insurance in large concept is nothing else than the socialization of risk. Whether it's private or public makes is conceptually irrelevant.

Which makes the 'change', in my in-this-case-genuinely humble opinion, in the ultra-high concept that I am discussing, is far more formal than substantive. There is no meaningful difference between the collection of premiums and disbursement of benefits by a distant conglomeration of private bureaucrats, and the collection and  and disbursement by public bureaucrats. I am aware that there are those who have a Manichean view of the matter, that massive private organizations are Good, and massive government organizations are Bad. But I don't see it. 'Good' or 'bad' depends on the details of administration. 

Which leads to the inference . . . . 

Inflexibility. I don't identify with either political party, but it seems to me that the Republican Party picked a very poor issue on which to draw a line in the sand. The principle 'it it's not broke, don't fix it' doesn't apply to US health care. The system is very badly broke.  Our scheme of private socialization has failed, both in the extent of coverage and in controlling costs. The most compelling criticism of the bill is one that the Republicans never made (to the best of my knowledge) that the candle wasn't worth the game, i.e., the changes are too slight to justify all the executive and legislative energy that went into the enacting of it. But equally so, all the sound and fury generated in opposition made no sense.

(It seems to me the Republican opposition to this bill in its excesses bears some analogy to the Democratic position on the war and security between 2002 and 2006. The extremists in the Democratic Party, the Demented Left, were so furious in opposition to the war and George Bush that they belittled the underlying cause, the threat of terrorism. By 2004, the public was lukewarm and mildly oppositional on the war, in the manner of most popular democracies. But it took the threat of terrorism very seriously. By giving the extremists voice, the Demented Left succeeded in losing a Presidential election it might otherwise have won. The Demented Right of the Republican Party, in fomenting a reaction to the Administration bill that is wildly disproportionate to the actual changes, risks doing the exact same thing to that party.)

Which leads to the truly substantive comment . . . .

Cost Control. The basic issue with respect to health care is controlling soaring costs. Private insurance companies have been pilloried for premium hikes, but to my way of thinking, that's to mistake the disease for the symptom. No doubt profits are too large and top executive salaries as out of line as they are in other segments of American business, but these are not the reasons why premiums are soaring. The reason is out-of-control costs.

To my way of thinking, the bill simply does not address those issues. To be sure, there was a great deal of talk about this. But here the equivalence of private with public socialization is compelling. If the private system of socialization now in place has been a dismal failure in terms of containing costs, why should there be any realistic hope that a public system will do any better? At any rate, I for one don't see any.

There is no revision of the fee-for-service protocol for the provision of medical services, which is the basic engine of cost expansion. Nor was there any meaningful tort reform, which might reduce the amount of GDP consumed by the parasitic medical malpractice 'industry'. I am fully aware that the great triumph of the bill is the expansion of coverage to the previously uninsured - but aren't the two matters directly related? The point of the exercise is to reduce the total percentage of GDP consumed by the health care system. If society is successful in reducing the costs of the fully insured, on a macro basis, the savings become available to apply to the uninsured. On the other hand, fail to reduce costs, and we all go broke together. 

So the ultimate bottom line to me is that I am not seeing all that much in the way of actual reform. We are still going to over-compensate medical and legal professionals as we have for three generations now. 

Which is why I re-wrote Gilbert to begin this piece:

It really doesn't matter how the system's rearranged

Because it hasn't really changed - nothing's really changed.

The Good That Men Do . . .

    Ted  Kennedy has been dead now nearly six months. His memorial service was as impressive an example of Catholic liturgy as ever you will see, which - when it is good, is very, very good. The eulogies spoken thereat seemed to me thoughtful and sincere. Collectively, they portrayed a personality of more nobility and depth than I thought the man possessed, for I was not sympathetic to him in life. These days, when I wander into Border's or the like, I see his posthumous book - I don't recall any prehumous - True Compass, with a picture of his handsome, weatherbeaten face on the cover, on the beach. The reviews are generally sympathetic. 

      Which leads me to my question, and the subject of this piece.

      Where is it?

      Where is the personal, truthful account of what really happened on the night of June 25th, 1969?  I'd prefer the document handwritten, but print would do. Most of the persons I respect would have perceived a moral necessity to account for the 40 years of life (plus two months) that Ted Kennedy had, that Mary Jo Kopechne did not. The event also had major consequences for the political history of this nation. Jimmy Carter likely became President in 1976 because the scandal prevented Kennedy from mounting a viable candidacy. The presidential election of 1980 was also affected. 

     But mostly it is required to do the right thing by a poor forlorn girl who died long before her time was due. 

     I can understand why the account might not be published at this time. The brutally direct account written by Seymour Hersh (back when he was an actual reporter) 'Chappaquiddick Plus Five', that appeared in the New Yorker, is not available on line. As I recall, there were five married men between 45 and 55 on that island. There were five unmarried women under thirty. There was a lot of vodka and party stuff. There is an implication in those basic facts that may still matter to living people even after 40 years. So maybe a few more years have to pass before the full truth can be aired. Just about the only thing that is known about that long ago night is that no one did tell the whole truth or even partial truth about what happened. 

     Maybe there are good reasons for the silence. I'm not suggesting criminality or major scandal, just . . . .good reasons. Perhaps it is still too soon for full disclosure.  But I do believe that it is essential to know that such a document exists. If Ted Kennedy went to his grave without addressing that night, leaving the ghost of that girl wandering around restlessly, then all that beautiful liturgy was wasted. The singers might as well have been performing in concert, the speakers might as well have been addressing empty pews. However lovely the ceremony might have been, it was as empty of real humanity as the saints in the stained glass windows. No matter how wonderfully handsome the rugged, weather-beaten face might be, if he did not attempt to do right for someone whom he wronged so mightily (directly or indirectly), Ted Kennedy remains forever the insubstantial, irresponsible contemptible playboy of more cold-blooded assessment.  

      'The good that men do? Shakespeare finishes the thought, is oft interred with their bones. When I gave this piece that title, I wasn't thinking of Ted Kennedy. I was thinking of Mary Jo Kopechne. Ted Kennedy did not truly earn his beautiful funeral unless he gave her a send off of her own - so that everything she was or could have been does not go to her grave with her. 

Defining Victory in Afghanistan and Elsewhere

    On the civilized chat board on which I normally hang out, two posters from opposite ends of the political spectrum really go after each other. One is a literate, committed Annapolis grad and career navy officer, the other a well-read business executive committed to the view that the interventions of the United States in Iraq, Afghanistan, and elsewhere are doomed to futility. They agree on almost nothing. But they are in agreement that 'victory' in Afghanistan and elsewhere, in general on, the war on terror, is an impossibility. There is too much tribal rivalry to overcome, too little infrastructure, and too much history of futility. 

    This to me raises exactly the kind of linguistic issue I began this blog to address. It is obviously impossible to 'win' a war against 'terror', or a war against 'drugs' or 'crime' in the same way the South surrendered at Appomattox. 'Terror'  'drugs' (meaning drug sale or usage), and 'crime' are all concepts, or types of behavior. So let's for starters modify the meaning of 'victory' to a usage that actually has practical application to such abstractions. Let us say victory means 'the maximum positive result in practical terms'. Well and good - we at least have a working definition that can be applied to abstractions. But it is still devoid of content. What exactly is the maximum practical positive result in concrete terms?

     Philip Bobbit, a legal historian at the University of Texas, has written two enormously influential books in this decade - 'The Shield of Achilles' and 'Terror and Consent'. The second of these addresses this issue directly. The author attempted to write a book that would be academically credible as well as accessible, with the result that the book is a mite on the tomish side, and not as widely known as it should be. But the thesis is persuasive., Examining a variety of national and international conflicts over the last millennium, Bobbit postulates that organized nation states bring forth (for want of a better phrase) enemies that mirror their organization. For example, the city states of medieval Italy, whose armed forces were essentially bands of knights, were opposed by mercenaries, condottiere, organized in a similar way. The more sophisticated nation states that arose between the 17th and 20th Centuries generated opposition in the same way, with the military organizations of the rival states aping each other's military organization.

       Bobbit argues that the nation states that dominated world affairs until the end of the Cold War have been outmoded, replaced by what he calls the corporate state. The term is unfortunate, for 'corporate' has a connotation of 'business enterprise', which is not (I think) Bobbit's meaning. He uses the term to reference the extent to which the institutions of government and culture have become distributed globally, without any fixed locale, in the same manner in which a corporation does not have a physical identity. Thus, the financial institutions of global society cannot be said to be located on Wall Street, or the Bourse, or the Street, or the Rialto, or anywhere. They comprise a network which cannot even be described as 'international' (which implies a relationship of national identities), but metanational or transnational. Films and television programs are released now all over the world at the same time. Satellite capability makes any significant event a global event, no matter how localized. The corporate state exists independent of any locale or nation state.

     Per Bobbit's historical view, the corporate state will inevitably produce its own enemy, its nemesis, which will ape its primary characteristics. The adversaries of the corporate state, its deadly foes, are similarly 'corporate' and networked, without any fixed national base. The most notable of these is Al Quaeda, which has no physical location and only a vague ethnic center. Something of the same can be said of the other enemies of the corporate state, opponents of globalization and the like.

       This raises an obvious question. The historical motivation for nearly all conflicts - tribal, intranational, international, and so on - have been disputes over territory and resources. But these are not. (A witty friend of mine jokes that US involvement in the MidEast occurs because 'our oil is under their land'.  A nice turn-of-phrase, but I don't think that the United States has saved a single dollar on a single barrel of oil as a result of its involvement in Iraq and elsewhere. Christopher Hitchens recently put paid to the notion more trenchantly.) So if these conflicts are not about territory, what do they involve?

      Bobbit addresses this issue in the title of his book. He sees the great global conflict in progress at the moment as a war between governmental systems based on the consent of the governed (the model for most civilized nations on earth) and those who would undermine consent by force or terror, in the name of a religious utopia, worker's paradise, or what not. The use of the word 'consent' has a nice precision, as opposed to 'democracy', i.e., there are forms of consensual government that are not formally democratic. Note, too, that the concept embraces the most vigorous opponents of an established government, so long as their method of opposition is based on winning the consent of the governed. The enemies of consensual government are literally enemies of consent itself - seeking to undermine the foundations of consensual government itself, either by direct seizure of power or forcing the established government to respond to terror and the threat of terrorism with police measures that effectively destroy its own legitimacy. 

     (This implies a fairly cynical view of the motives of terrorists, but for better or worse, it's one I share. If there is one single characteristic that has marginalized modern liberalism, it is its inclination to rationalize and condone political violence when the stated reason therefor is perceived to be just.  Not so - murder is first of all murder, and this is one case where the end not only does not justify the means, but the means effectively corrupt whatever end there was, becoming an end in themselves.  Always and everywhere.)

     Putting all this together, it is possible at last to define 'victory' in Afghanistan in concrete terms. Victory in Afghanistan can be said to have been achieved when the conditions become such that a government of consent becomes possible. i.e., when the campaign of terror has been sufficiently marginalized that does not obstruct the processes of consensual government. 'Marginalized' means exactly that. All sorts of nations tolerate degrees of organized crime and violence - the United States has endured the existence of ethnic gangs, some of considerable size and power, for more than a century without any posing any real threat to the foundations of the nation. It was not possible to 'defeat' the Ku Klux Klan, the Cosa Nostra, the Blackstone Rangers, or the the Mexican Mafia, any more than it is possible to defeat the Taliban - not without destroying the foundations of the consensual state from the opposite direction, by stumbling into fascism. There is some residual criminality that a free society, alas, must endure if it is to remain free.  

     But what is possible is to diminish the effect of that criminality, the influence of terrorist opposition, to the extent that it doesn't signify all that much, so that the people who really matter can build an orderly and responsive society without being obstructed by those acts - a society based on the consent of the governed. It can't be eliminated, but it can be marginalized. The establishment of the conditions of a consensual government, freed from the obstructive influence of terrorist acts (since the complete elimination of such crimes is unfortunately not possible), is what constitutes victory in this milieu. Only a fool would predict whether these conditions ever will be established, or in what direction history will take the Afghani people if they are. 

     But to say that victory in Afghanistan and elsewhere according to this definition is not achievable is simply not correct. It is well within the realm of possibility, indeed, even probable. 

Sarah Palin, Jeremiah Wright, and PreacherSpeak

    When Sarah Palin became the Republican nominee for the Vice Presidency in August, 2008, her membership in the Wasilla Assembly of God, a Christian fundamentalist congregation, immediately came to the fore. Many of the best and brightest reacted reflexively. Her membership in such a church constituted at least presumptive evidence that she was, if not actually dangerous, at the very least, stupid.   

    I march to my own drummer. Sarah Palin had been too spectacularly successful in achieving too many goals - beauty pageants, girls's basketball, Alaskan municipal and regional politics - to be dumb, IQ scores and Ivy League degrees be damned. There was one success in particular that interested me. This was her renegotiation in 2006 of the Alaskan pipeline construction and lease with a consortium of oil companies. This was almost universally regarded as a triumph for Governor Palin, before her ascent in Republican politics provided cause to question her competence in all areas. There was some fairly neutral journalism written by a couple of local reporters documenting her success.

    I found this interesting in view of the former Governor's membership in the Wasilla Assembly of God. Think about it for a second. The simple existence of oil, the mere fact that such a substance is, is a devastating commentary on Biblical fundamentalism - unless a True Believer takes the position that God used this glop to cement the Earth together on Day Three or Four or whatever. I am not aware of any such theological approach. This is not to say a governor negotiating an oil pipeline contract has to become a petroleum engineer, because she obviously does not. But she does have to communicate with petroleum engineers, oil executives, and the like, all sorts of people and personalities with hyper-sophisticated scientific and technological backgrounds. She also has to be able to evaluate her own advisers and their advice, and distinguish the good from the bad - all of which Sarah Palin did, with considerable success.

    There are also those 80 percent approval ratings, obviously a demographic a lot larger than Christian fundamentalists. Those approving must have included a lot of erudite and sophisticated Alaskan citizens. All of this bespeaks a world view a lot larger than that of a Biblical literalist. Yet she is a member of the Wasilla Assembly of God, and clearly comfortable in the congregation. Interesting.

     So what goes on here? Does Sarah Palin's membership in the fundamentalist church brand her as stupid? The mainstream media thought so. Or does her ability to lay the tenets of the church to one side when dealing with the practicalities of Alaskan oil make her a hypocrite? That would certainly be the alternative position of the mainstream media, which has not exactly been charitable towards this particular public personality. My own thought is that both answers are way, way too simple. I think the answer lies elsewhere.

    I live in Santa Clara Valley, California, which most of the world calls 'Silicon Valley'. It's an extremely multicultural community - the high tech opportunities have brought, eager technologists from all over the world - and extremely sophisticated, dominated by Stanford and Santa Clara Universities, and only 35 miles south of San Francisco. In this ultra-civilized environment, there are more than 150 private schools in operation. Here's a list. Maybe two-thirds of these have religious affiliations, and maybe half of  those are committed to a philosophy most would characterize as Fundamentalist. (I am not including any Catholic or Episcopal schools in that number.) The vast majority of these institutions are Christian. There are a half-a-dozen Jewish affiliated schools, and one Islamic elementary school. Based on the school descriptions, these are apparently Fundamentalist as well.

   The enrolment in most Christian Fundamentalist schools is a mixture of Caucasian and Asian students, with Asian enrolment averaging around 40 percent. Here's another list, which contains that information. To the best of my knowledge, there is no site that summarizes the annual costs systematically, but from what schools DO disclose the figure, tuition begins at about $6,000 for elementary school. High schools cost around $10,000. Valley Christian, the flagship of these institutions and a local athletic power, charges a little over $13,000 for the first child, $12,000 for a second - many of these families will educate two or more children at such a school. 

    The point should be obvious. The parents who pay this sort of money to send their sons and daughters to these sort of schools are not doing so with the expectation that these students will go on to divinity schools at bible colleges and become pastors of small, revelation churches. They have the same dreams and ambitions for their children as those who send theirs to secular schools. The academic presentation at The King's Academy, a Christian school in Sunnyvale, is typical. The school is unambiguously and unapologetically Christian,  describing itself as a "Christ-centered college preparatory middle and senior high school for students who have teachable hearts and coachable spirits. We offer a loving, family environment where students are encouraged to grow in their relationship with Jesus, their family, teachers, and other".  This is a philosophy that can fairly be described as Fundamentalist. Enrollment is about 800, a quarter of whom are Asian, 10 percent Black/Hispanic, and the balance Caucasian. Annual tuition is just under $10,000.

    To these students, the school offers AP classes in chemistry and biology, as well as calculus, history, and English. According to its presentation, about 60 percent of the AP candidates score 3, 4, or 5.  College counseling focuses at the University of California and California State University system. The students who attend the school fully expect to matriculate there, or at a any number of quality schools around the country.

    I don't want to overdo this. Santa Clara County abounds with private schools that emphasize intense academic performance and achievement. The King's Academy is not one of them. But it should be apparent that the families who choose this secondary education for their children have pretty much the same ambition for them as any of the families who go the secular route. Also, it is not possible for the King's Academy students even to sit for AP examinations in biology and chemistry without a thorough grounding in contemporary scientific theory. Yet the school's emphasis on a direct, personal  relationship with Jesus clearly marks it as fundamentalist in nature.

    One preliminary point before heading toward the crux. It's a big mistake to equate Fundamentalist Christianity with Biblical literalism, or even that a believer is necessarily unscientific. Congregants in Fundamentalist sects exhibit the same infinite variety and degrees of belief in the orthodoxy of the faith, and the same flexibility with respect to difficult facts, as believers in any other faith. (I hope that does not sound too patronizing.) That's why Palin could be a devout member of the Wasilla Assembly of God, and simultaneously handle oil pipeline negotiations so capably. The apparent cognitive dissonance no more troubles her than it troubles religious people in faiths that are more 'acceptably' mainstream.

    Which segues neatly to the major point. It's a fair bet that the parents who choose The King's Academy have the same awareness of the difficulty of truth, the same experience of the problems of faith, the same issues reconciling higher principles with self-interest, the same doubts as to any absolute in a universe in which so much is relative, as those of my neighbors who adopt the more conventional, secular humanistic point of view. The core theology of all the traditional religions flies squarely in the face of scientific fact and theory that they accept without question in every day life, that some of them use daily - they know that, too. They know also of the social stigma that attaches to adherents of Fundamentalist congregations. So there is a real question as to why these choices are made by intelligent people, in the face of so much they know and experience - for, as noted above, I believe it's a slander to think that this is a matter ot diminished intelligence. 

    It has been my own belief for many years that these are actually ethical and values decisions masquerading as metaphysical and religious. Fundamentalists don't accept the dogma of the religion and then adopt its values. They seize on the values and then adopt the dogma to reinforce and emphasize their significance. The dogma serves two purposes - first, grounding the values in religious text of infallible quality makes the values themselves immune from the attack of relativism. Second, the dogma is a mechanism for unifying the community, a set of shared symbols under which the believers can gather. The fact that the belief system is the object of scorn and derision generates a nice stigma of oppression that gives the unifying religious metaphors all the greater unifying force. Fundamentalists defend the truth of Genesis because they're scared to death that, if it goes, the Ten Commandments go with it. As committed members of a community of the committed, they are likely to undercut publicly these unifying symbols. But at the personal level, one individual and the next, the ultimate privacy of the soul, belief in their literal truth? I doubt it very much - and this fact, though unacknowledged, is implicitly understood throughout the community.

    That's the reason why The King's Academy can describe its principal goal as developing the personal relationship of its students with Jesus, and simultaneously offer classes in AP biology and chemistry. The two different languages don't correlate. The first is  'preacherspeak', an articulation of a moral and metaphysical approach to the problem of finding meaning in this dark and obscure universe. The second is scientific. The first don't signify with respect to the second. Stephen Gould, the wonderful and much missed Harvard palaeontologist, made this same point at much greater length and infinitely greater eloquence in his 1999 book 'Rocks of Ages. The applicable acronym is 'NOMA', Non Overlapping MagisteriA'.

  It's as easy to nod your head in recognition of the insight of the Harvard public intellectual, as it is to overlook the fact that the fundamentalists at The King's Academy are practicing exactly what Gould preached. The difference - and it is not at all a small one - is the tacit acceptance of the duality. That has to do (in my opinion) with the hostility the fundamentalists perceive towards their social and moral values. They feel too besieged to admit the obvious fact that they do not apply the religious Magisteria to scientific matters.  

    The same insight applies to some of the more extravagant stated beliefs of the members of Jeremiah Wright's megagchurch in Chicago, Trinity United - for example, the notion that the AIDS virus was concocted by the United States government for some fiendish genocidal purpose. Talk to the Wright's congregants one at a time, and my belief is that you will find few, if any, that will sign on to this set of beliefs as individuals. What they are is a set of shared symbols that serve to express the collective - and rather profound - social alienation felt by the community as a whole.

    (And why not? I am not African-American, nor do I believe that AIDS is a form of state-created germ warfare. But if I were, I might just possibly answer affirmatively to a pollster's question, regardless of what I thought. Why should I undercut the community of which I am a member, the friends that I like, in favor of an abstract and irrelevant truth? Besides, the expression of that belief says something important about what I think the of the relationship between the inner city African-American community and larger society. The bottom line is that talk is cheap. How I answer the poll isn't going to change anything - I know that - and the incorrect answer says much more about how I actually feel about the world than the literal truth.)

    I don't want to press the analogy to the point of foolish consistency. There are some obvious differences between adherence to ancient religious orthodoxy and modern urban legend. But both are ultimately instances of 'preacherspeak' - a set of shared icons and/or social beliefs that, though expressed collectively as factual truth, in reality have metaphorical significance, as a statement about moral and social values. The individuals in the respective communities have a tacit understanding of the limitations of the symbol set,  demonstrating an instinctive understanding of Gould's NOMA. That's why Sarah Palin can negotiate oil pipeline leases skillfully, The King's Academy can post proud reports about the good performance on AP biology tests, and the members of the Trinity Church can do business with a health establishment that in theory of the same membership s trying to kill them all.

    So what are the conclusions from all this? The basic point is the reason I wrote this post. The kids at The King's Academy, the congregants in Trinity United, aren't stupid. You can make them sound stupid by focusing on the symbols in which they express the strength of their convictions, but you'll be saying something about yourself, not them. If you want to engage them, you discuss the values that underly the metaphors, not the metaphors themselves.

    But that leads to the second point. The stridency arises because the governing conventional wisdom of this culture never does engage with its opposition. It derides, it scorns, it excludes. it ignores - it never debates. Almost its primary governing characteristics is its snarkiness. Oh, so that's the sort of person you are. When Charlton Heston spoke to the membership of the NRA, the point that brought down the house wasn't his insistence on Second Amendment rights. They don't take us seriously, he said. They call us all nuts and crazies. They don't listen. That was the theme that resonated, not any of the substantive issues of gun ownership. They respond to the ridicule with zealotry, because dialog simply isn't possible.

    I don't like zealotry, or, for that matter, fundamentalist religions, or true believers in urban myth. It seems to me that the challenge of living authentically in these times of feverish information overflow, is to insist on the core values of enlightened Western culture, a combination of basic Judaeo/Christian and English liberalism, without descending into any absolute. But on those annoying occasions when I'm mistaken for a conservative (I'm too idiosyncratic for any categorization, but more the oldest of old-style liberal than anything else), it's because I do share the same sense of embattlement with respect to these traditions. An insistence on the fundamental worth of all human beings, tolerance for others in the sense of letting them alone, a demand for equal treatment for everyone - this stuff began in churches like Wasillia and Trinity, not in faculty lounges or editorial offices. With few exceptions, the trendsetters all go over like ten pins when the bad times come and the winds change. If history is any gauge, they'd all be wearing armbands within a fortnight if a Fascist regime actually came to be. The only thing that never changes is the sneer.

    Finally, the bottom line in all this is that the Wasilla Assemby of God and the Trinity United Church have a great deal in common - most notably, an understanding of the limits of preacherspeak and a profound sense of alienation. One fine day, Sarah Palin, or her like, who knows those feelings, is going to stroll in the Trinity United Church, or the likes of Jeremiah   Wright will find his way to Wasilla - and then maybe, just maybe, we will experience the kind of bloodless revolution in which this nation has specialized since 1965 - a searching look at the power structures that dominate our legal, financial, political, and educational landscapes, maybe a scorching look at the massive accumulations of wealth and influence we have allowed to build up since the turn of the last century. My most fervent wish for my country is that that day is not too long in coming. 

The Notch Effect

    I have often used the 'belling the cat' metaphor as shorthand for the difference between high concept strategy (always extremely easy) and actual implementation (always extremely difficult). I'm way overdue for a concrete example. Given the current discussion about health care reform, the 'notch effect' is a good illustration.

    The notch effect bedevils social welfare schemes. I first learned the phrase in a book published by Daniel Patrick Moynihan in 1971, 'The Politics of A Guaranteed National Income'. It may be hard to believe post-Watergate, but the first Nixon Administration actually produced some innovative ideas. Many environmentalists would be astonished to learn that the EPA was founded then. Moynihan, the resident token Democrat intellectual in the Cabinet, attempted a massive overhaul of the welfare system, based on the notion of a guaranteed base income, which was borrowed from Milton Friedman's concept of a negative income tax. The reform failed completely, under merciless fire from both Left and Right. Moynihan wrote about the experience in the book I mentioned. Good reading, although the ordinary arithmetic (sic - not math) becomes mind bending within the first hundred pages. In any case, it was in that reading I became aware of the Notch Effect.

    Suppose you are a conscientious Out. You make sincere speeches to the effect that a nation that can create the Internet can provide decent education, housing, health care to all the uninsured Poor. Now, suddenly, you are an In, and you have to translate that goal into practice. How do you do so?

    I'll use 1970 type numbers for convenience. Who exactly are the Poor? You are a reformer, not a mad man, so you eliminate able bodied adults who can support themselves even if they choose not to. You restrict the definition to the disabled, and families with dependent children, with income of  less than $5,000, You structure a system of education, housing, and health benefits to remedy the effects of this poverty. Well and good.

    It is here that the notch effect shows up. When you set the poverty line at $5000 and provide substantial benefits for those below, you create a notch at that level. Someone who earns $4,999 a year receives benefits worth a several thousand dollars. However, if that someone works one more hour at a Burger King, and end up with $5,001, he or she gets nothing. A 2 dollar difference makes a (say) $5,000 difference. You unutterable fool. You are going to pin down the poor to permanent welfare dependency, unless the family (improbably) can leapfrog to an income position at which it can do without the subsidized benefits.

       That obviously won't do, so you are going to have to include some graduated scale according to which benefits are phased in, and then fazed out. Well and good, but your simple little system just went up several levels in complexity. (That's why the arithmetic in Moynihan's book began simple but became mind numbing).

    And of course, we are only thinking of income as a simple, one dimensional variable.  What about illegal and non cash income? Drug dealers? Madams? Applicants with huge undisclosed cash resources? That clearly won't do. You obviously can't effectively police this sort of fraud at the administrative level, but you can regulate against it and criminalize the receipt of benefits when such conduct is turned up by other police investigations? But that's a whole new set of regulations, and another layer of complexity.

    Are you talking about one income or two? The core issue of American social aid systems. Are you going to determine poverty on the basis of individual or family income? Individual? You fiscal idiot. By that measure, every minor child qualifies, no matter that his daddy's rich and his ma is good looking. You'll break the bank.

    Ok. so eliminate minor kids and determine their eligibility by reference to parent's income. Sorry, but you still have a problem. Every stay-at-home mom with a conniving soul has suddenly become eligible, no matter that her loyal husband is a rock star. You fiscally irresponsible rad-lib.

    Ok, so let's include the husband's income. WHAT????? You've just disincentivized and demoralized the most marginal fathers in society, if the benefits you are offering equal or exceed the income the father can provide.

    Ooooooooooookay . . .  why don't we include a 'presumptive minimum income' from the father, regardless of actual earnings, so that he has no motive to leave? WHAT???? You heartless bastard. You are going to deny or limit benefits to needy families on the basis of PRESUMPTIVE income? Money that is non existent? Don't you know how difficult it is for a single mother of limited education actually enforce her rights?

    And on and on and on. What about parental support? What about families headed by single women with children of multiple fathers? And I am simplifying by treating housing and health as unitary variables. Easy enough with the basics, but what about the grey area? Take acne with adolescents. Maybe it's a single zit below the lip of an impossibly vain cheerleader, or maybe it's the kind of major disfigurement that turns a formerly well-adjusted child into a social misfit. How do you decide coverage? By pimple count?

    I have made (I hope) my point, without (I hope) insulting anyone's intelligence. The target here isn't anyone on the Left or Right. The target is empty sloganeering. For what it's worth, I think there's a moral imperative to assist the poor, and in such a way -  to the extent practicable - that they are not disempowered. (This is my version of belling the cat.) I think most Americans have exactly the same value. Persons who are skeptical about this program or that do not necessarily have different values. They may have a different view of just what the task of belling involves, and how well it will really work.