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Monday, October 31, 2005

Re: Tony D’Amato’s Letter: On Taking Things Hard

October 31, 2005

Re: Tony D’Amato’s Letter: On Taking Things Hard.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Tony:

There is truth in what you say. For sure. Yet I do not read your email as meaning that the perceptions arising from the heartbreak are incorrect -- no one who has read your article on judges making up their own facts could read it that way in the absence of more explicit statements to such effect. Perhaps the result of our unhappy feelings is that, being academics, we write about what we think, thus putting the perceptions into the public dialogue, at least to the modest extent that people read what one has to say (or, in your case I would think, the much greater than modest extent).

Practicing lawyers who handle large numbers of cases no doubt are able to -- and in fact have no choice but to -- put a matter aside and move on to the next one on their crowded dockets. This helps emotionally, as in any profession or business (medicine would probably be an excellent example). The other side of this, of course, is that one becomes jaded (as with politics, which we observe daily?).

Yet the practicing lawyer can and often does have many of the same perceptions we do, I think, and may take defeat as hard as we do, at least at times. (This sometimes leads to burnout.) As far as I know, Peter Young, whose emailed views catalyzed your remarks I assume, is a practicing lawyer handling lots of matters. A number of my colleagues on the MSL faculty who practice extensively have the same perceptions we do, although in some instances their need to get on with the next matter does seem to help insulate them against heartbreak (or at least so I think). And although he is also a professor as well as a practitioner, Jules Lobel, the author of Success Without Victory, does quite a bit of practicing (although it may be just one or two major cases at a time), but he seems to feel quite deeply about things.

So possibly the question of heartbreak is to some extent not only a matter of the number of cases one handles, but of one’s psychological makeup as well.

You know, it must be convenient to have the psychological makeup of a George Bush: to not care about other people even as they die; to care only about one’s own advancement and success; to be willing to lie like a rug (as the old saying has it) to get whatever you want; to be willing to let henchmen spread savage, factually untrue attacks against opponents in order to defeat them; and, perhaps most importantly, to know that the body politic will not believe or at most will be very slow to accept the truth about you -- about your (fundamentally evil) nature, (lack of) talents and brains, and lack of concern for others -- because you are, after all, a President, people don’t want to think bad things about a President, they instead want to endlessly hope and say that he may change his ways, may change his policies, may become a good guy, and so forth. Yes, it must be convenient to have such a psychological makeup, but people like you, me, Peter Young, Jules Lobel (and many of my colleagues on the MSL faculty) simply don’t have that kind of makeup. We are condemned, despite knowing history (pace George Santayana), to some level of heartbreak over what we see and, often, write about.

Sincerely yours,

Larry


From: Anthony Damato
Date: Tuesday, October 25, 2005 6:43 PM
To: Dean Lawrence R. Velvel velvel@mslaw.edu

As academics, you and I tend to take one case at a time. Result is, every once in a while, heartbreak. I've never thought about it this way, but practicing lawyers who have 60 to 120 cases going on at the same time can take losses more easily.

Tony


At 01:20 PM 10/25/2005, you wrote:

From: Peter Young petery@comcast.net
Date: Tuesday, October 25, 2005 9:54 AM
To: Dean Lawrence R. Velvel velvel@mslaw.edu
Subject: More Thanks

Dear Larry,

Another thanks for the manuscript of volume 4, which I received last week and read the same day. Another page-turner I couldn't put down.

Nothing that happened in your suit against the USBA, as you call it, surprised me in the least since I've often represented the unpopular, the oppressed and the repressed.

Those who take on the establishment invariably find a new set of rules is in place. The rule of law disappears just when you need it most. Discretion is exercised one way exclusively, facts are distorted, discovery is prevented, obviously perjured testimony is accepted, legal arguments are ignored, clear error is dishonestly deemed harmless, and so on, and the entire course of shoddy treatment often ends up buried in an unpublished opinion. Once in a while justice prevails anyway, usually as a result of sheer luck--a maverick judge is assigned to the case, the case catches public attention for some reason, that kind of thing. Thanks again for a wonderful read.

Best,

Peter

Tuesday, October 25, 2005

Subject: More Thanks

October 25, 2005


From: Peter Young
Date: Tuesday, October 25, 2005 9:54 AM
To: Dean Lawrence R. Velvel
Subject: More Thanks


Dear Larry,

Another thanks for the manuscript of volume 4, which I received last week and read the same day. Another page-turner I couldn't put down.

Nothing that happened in your suit against the USBA, as you call it, surprised me in the least since I've often represented the unpopular, the oppressed and the repressed.

Those who take on the establishment invariably find a new set of rules is in place. The rule of law disappears just when you need it most. Discretion is exercised one way exclusively, facts are distorted, discovery is prevented, obviously perjured testimony is accepted, legal arguments are ignored, clear error is dishonestly deemed harmless, and so on, and the entire course of shoddy treatment often ends up buried in an unpublished opinion. Once in a while justice prevails anyway, usually as a result of sheer luck--a maverick judge is assigned to the case, the case catches public attention for some reason, that kind of thing.

Thanks again for a wonderful read.

Best,

Peter

Friday, October 21, 2005

Subject: Your piece in today's Times

----- Original Message -----

From: Dean Lawrence R. Velvel
To: Dahlia Lithwick
Sent: Friday, October 21, 2005 9:08 AM
Subject: Your piece in today's Times
Dictated But Not Read

October 21, 2005

Dahlia Lithwick

Dear Ms. Lithwick:

Your piece in today’s Times about the Roberts and Miers nominations being a bid for vastly increased presidential power was excellent -- and very important. Ours was not intended by the founders to be an executive-dominated government a la George III, but a legislative government. This is the most important issue that has continuously faced the country since June, 1950. In the hope that it will result in very close scrutiny of the issue during Miers’ confirmation hearings, I urge you and your colleagues in the media to continue writing about the Busher attempt to turn ours into an executive government. I have also appended a blog, posted yesterday, which contains information that you and your colleagues could find useful in further writings on the question.

Sincerely yours,


Lawrence R. Velvel
Dean, Massachusetts School of Law



October 20, 2005

Re: Presidential Government And Harriet Miers.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Thirty-five years ago this author wrote a book dealing with the constitutionality of the Indo-China war and with civil disobedience -- which was, of course, taking place extensively at the time. (The book was called, in a fit of literalism, Undeclared War and Civil Disobedience: The American System In Crisis.) The book has been out of print now for more years than I even know, but some relatives and friends still have copies.

Last weekend I was visiting relatives in Chicago, and they pulled out the book to show it to a newer member of the family, who had married into it. He thumbed through it and said it looked pretty good. I replied that it had been okay for its time and place, to which he responded that it looked quite relevant today. I could not honestly disagree. For the Indo-China war, like today’s wars in Iraq and against terrorism, involved the most important and enduring constitutional question and, with civil rights, one of the two most important and enduring political questions of the 55 year period since Truman took us unto Korea. They involve the question of the scope of executive power -- a question that may be with us for many years yet and that could end up destroying democracy as we have known it if the executive continues to become ever more powerful.

The already kingly executive of today, like the kingly executive of Johnson’s and Nixon’s times, pretends that ours is de facto an executive form of government. This executive view has recently been expressed in many areas. The executive has claimed nearly unfettered power to fight wars. Now, it was revealed by The New York Times in a page one article last Saturday, the Executive is fighting not only in Afghanistan and Iraq, but also is secretly engaging in combat with Syria -- just as it once engaged in secret wars in Laos and Cambodia -- as part of an attempt to change the regime there. The Executive has claimed presidential power to override any and all Congressional laws in the course of combating terror. It pushes the right of secrecy to the utmost, closing off prior presidential papers that otherwise would be available, refusing to provide important papers of Supreme Court nominees to the Senate, and regularly claiming that privilege shields its deliberations from the people, not to mention Congress. It claims the power to clap people in jail without rights and to hold various prisoners forever (as well as to torture them). We have, in short, an Executive run amok.

One would think, and like the Johnson and Nixon henchmen, the current Republican henchmen in the White House try to have us think, that ours is supposed to be a presidential government. Nothing could be further from the truth. The founders -- whom the hypocritical criminals in the White House and the DOD like to ignore, not praise, when ignoring rather praising suits their purposes -- were desperately against a presidential government. They had had enough of an executive government with George III. They deliberately established a legislative government, not an executive one. And their views in this regard were vigorously expressed with regard to power over war, where their decision was embodied in the Constitution’s declaration of war clause. Here is what Madison, perhaps the most important member of the Constitutional Convention, said with regard to war:

"Of all the enemies of public liberty, war is perhaps the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies. From these proceed debts and taxes. And armies, debts and taxes are the known instruments for bringing the many under the domination of the few . . . . No nation could preserve its freedom in the midst of continual warfare."

The founders’ reasons for giving Congress the power over war were stated by other great Americans of the nation’s earlier years. Here is what Abraham Lincoln said:

"The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power to bring this oppression upon us."

The most elaborate explanation was that of the great early 19th Century Supreme Court Justice, Joseph Story:

"The power of declaring war is not only the highest sovereign prerogative; but it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead; and in a republic, whose institutions are essentially founded on the basis of peace, there is infinite danger that war will find it both imbecile in defense, and eager for contest. Indeed, the history of republics has but too fatally proved, that they are too ambitious of military fame and conquest, and too easily devoted to the views of demagogues, who flatter their pride, and betray their interests. It should therefore be difficult in a republic to declare war; but not to make peace. The representatives of the people are to lay the taxes to support a war, and therefore have a right to be consulted, as to its propriety and necessity. The executive is to carry it on, and therefore should be consulted, as to its time, and the ways and means of making it effective. The cooperation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation, as it is in all others. Indeed, there might be a propriety even in enforcing still greater restrictions, as by requiring a concurrence of two thirds of both houses . . . . This reasoning appears to have had great weight with the convention, and to have decided its choice. Its judgement has hitherto obtained the unqualified approbation of the country."

Those sentiments resonated during the Indo-China war and again today. Yet, as said, the criminal gang of Republican politicians and lawyers, abetted by certain generals, have attempted, often successfully, to make the Executive a law unto itself with regard to fighting, torture, holding people in jails, pseudo judicial proceedings, secrecy, and what have you: Bush, Rowe, Rice, Cheney, Libby, Addington, Gonzalez, Bybee, Yoo, Chertoff, Rumsfeld, Wolfowitz, Feith, Miller, Sanchez are some of the culprits, but not all.

Just as bad as this criminal executive gang is that the Congress itself has thus far taken no steps to stop them from destroying the Constitution. Instead a supine Congress has gone along with everything from passing the Patriot Act without reading it, to not contemporaneously challenging lies used to persuade the country to enter war, to approving nearly an uncabined authorization of war which pretty much allows the Executive to fight wars against anyone and everyone it chooses, wherever it chooses, for as long as it chooses, to allowing torture to be de rigeur.
* * * * *

This writer has been wondering for awhile whether he should be for or against the nomination of Harriet Miers. Not that this blogger’s view matters. It doesn’t. Just like most people’s views don’t matter in this country. So call the wondering an exercise in abstract intellectual interest, if you like. You’d be right to do so.

Nonetheless, it has seemed to me likely that Miers has to some extent been getting a bad rap. True, she has no as-yet-known experience with high falutin’ constitutional law. And true, she is obviously a Bush sycophant. But she did manage to rise to the top of a law firm in an era when the cards were greatly stacked against women. Someone who rises to the top in those inevitably shark infested waters has to have some smarts and ability. One should also remember that, in making a success on the private side, she managed to do something that Bush himself never had the brains or ability to do. (Maybe she should be President, not him?)

Yet, now it has also come out that Miers has been making speeches lauding executive power, calling for its increase, and lauding the secrecy which contributes to an ever more powerful Executive. These speeches, it seems to me, should turn people who care about our country against her - - unless she is willing to recant in front of the Senate Judiciary Committee, which she’ll never do. To recant, she would have to admit defacto that she said these things only because she was a henchwoman for Bush. Don’t hold your breath.

One is aware of the argument that what a person says as a presidential aide of one sort or another can differ from what he or she says or does as a Justice. If memory serves, Justice Jackson even made this point about himself in his concurring opinion in the Youngstown Sheet & Tube case. But again, don’t hold your breath waiting for this to happen again. And the stakes for democracy are too high. Given what the Cold War and its aftermath have wrought, the stakes could be democracy itself. How many times, after all, do you want there to be a Jay Bybee or a John Yoo or an Alberto Gonzalez telling the President that he can do any damn thing he wants, and as for the law, well, as Commodore Vanderbilt is said to have remarked, "The law? What do I care about the law? I got the power, hain’t I?"

If there is one point (other than abortion?) on which the Senate Judiciary Committee ought to hammer during the confirmation hearings, it is Miers’ view of executive power, what she has said about it, and -- what nobody seems yet to have discussed -- what if any role she played in expanding it so that the Bush administration and its ideas have come to be a threat to America.
* * * * *

One simply cannot resist a crack at the media, which is so heavily responsible for allowing the situation discussed above to arise. In a recent piece, Paul Krugman, the New York Times columnist who is not really a columnist but in reality is an academic economist, blamed the media for the rise of George Bush. Krugman pointed out that he himself said in November of 2000 that Bush "‘valued loyalty above expertise,’" "like[d] to surround himself with ‘obsequious courtiers’" and "‘prefer[s] . . . advisers whose personal fortunes are almost entirely bound up with his own,’" Now, said Krugman, "Lots of people are saying things like that these days." Yet back in 2000 the media made Bush President by making Gore out to be a jerk, while largely "portraying Mr. "Bush as an honest, likeable guy."

Why did he get it right, asked Krugman, while the media generally got it all wrong. The answer, he says, is that he made his judgments by observing Bush’s actions in a field he knows something about -- knows a lot about: economics. The rest of the media made their judgments on the basis of "‘up close and personal interviews,’" which the public likes, but which are notoriously unreliable because the ability to judge character from an interview here or there is pretty poor. Also, the media, says Krugman, engaged in careerism: "Those who wrote puff pieces about Mr. Bush and those around him have been rewarded with career-boosting access. Those who raised questions about his character found themselves under personal attack from the administration’s proxies," as Krugman said had occurred to him. So even though journalists always knew it, says Krugman, only now are we "hearing about his coldness and bad temper, about how aides are afraid to tell him bad news."

Let me freely translate what I think Krugman was saying, in part sotto voce. The media was both stupid and careerist in regard to Bush. It presented judgments based on highly unreliable "impressions," did not know you-know-what from shinola about substance, and, one would add, didn’t care about substance. Someone who knew and cared about substance, on the other hand, could discern the truth. All of this, by the way, not only strikes me as plausible and indeed most likely right in all respects, but also makes me think it would be a very good thing if more substantively expert non journalists, like Krugman, had columns, TV shows, and radio shows. It seems to me that in this country it quite often takes people who do not depend on advancement in the media for their livelihood and careers to tell the truth that journalists should but do not tell, should tell but do not tell because they are ignorant, careerist, and/or care only about the horse race aspect of politics, not the substance of issues.*
*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Thursday, October 20, 2005

Re: Presidential Government And Harriet Miers

October 20, 2005

[[[audio]]]

Re: Presidential Government And Harriet Miers.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Thirty-five years ago this author wrote a book dealing with the constitutionality of the Indo-China war and with civil disobedience -- which was, of course, taking place extensively at the time. (The book was called, in a fit of literalism, Undeclared War and Civil Disobedience: The American System In Crisis.) The book has been out of print now for more years than I even know, but some relatives and friends still have copies.

Last weekend I was visiting relatives in Chicago, and they pulled out the book to show it to a newer member of the family, who had married into it. He thumbed through it and said it looked pretty good. I replied that it had been okay for its time and place, to which he responded that it looked quite relevant today. I could not honestly disagree. For the Indo-China war, like today’s wars in Iraq and against terrorism, involved the most important and enduring constitutional question and, with civil rights, one of the two most important and enduring political questions of the 55 year period since Truman took us unto Korea. They involve the question of the scope of executive power -- a question that may be with us for many years yet and that could end up destroying democracy as we have known it if the executive continues to become ever more powerful.

The already kingly executive of today, like the kingly executive of Johnson’s and Nixon’s times, pretends that ours is de facto an executive form of government. This executive view has recently been expressed in many areas. The executive has claimed nearly unfettered power to fight wars. Now, it was revealed by The New York Times in a page one article last Saturday, the Executive is fighting not only in Afghanistan and Iraq, but also is secretly engaging in combat with Syria -- just as it once engaged in secret wars in Laos and Cambodia -- as part of an attempt to change the regime there. The Executive has claimed presidential power to override any and all Congressional laws in the course of combating terror. It pushes the right of secrecy to the utmost, closing off prior presidential papers that otherwise would be available, refusing to provide important papers of Supreme Court nominees to the Senate, and regularly claiming that privilege shields its deliberations from the people, not to mention Congress. It claims the power to clap people in jail without rights and to hold various prisoners forever (as well as to torture them). We have, in short, an Executive run amok.

One would think, and like the Johnson and Nixon henchmen, the current Republican henchmen in the White House try to have us think, that ours is supposed to be a presidential government. Nothing could be further from the truth. The founders -- whom the hypocritical criminals in the White House and the DOD like to ignore, not praise, when ignoring rather praising suits their purposes -- were desperately against a presidential government. They had had enough of an executive government with George III. They deliberately established a legislative government, not an executive one. And their views in this regard were vigorously expressed with regard to power over war, where their decision was embodied in the Constitution’s declaration of war clause. Here is what Madison, perhaps the most important member of the Constitutional Convention, said with regard to war:

"Of all the enemies of public liberty, war is perhaps the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies. From these proceed debts and taxes. And armies, debts and taxes are the known instruments for bringing the many under the domination of the few . . . . No nation could preserve its freedom in the midst of continual warfare."

The founders’ reasons for giving Congress the power over war were stated by other great Americans of the nation’s earlier years. Here is what Abraham Lincoln said:

"The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: Kings had always been involving and impoverishing their people in wars, pretending generally, if not always that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power to bring this oppression upon us."
The most elaborate explanation was that of the great early 19th Century Supreme Court Justice, Joseph Story:

"The power of declaring war is not only the highest sovereign prerogative; but it is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation. War, in its best estate, never fails to impose upon the people the most burthensome taxes, and personal sufferings. It is always injurious, and sometimes subversive of the great commercial, manufacturing, and agricultural interests. Nay, it always involves the prosperity, and not unfrequently the existence, of a nation. It is sometimes fatal to public liberty itself, by introducing a spirit of military glory, which is ready to follow, wherever a successful commander will lead; and in a republic, whose institutions are essentially founded on the basis of peace, there is infinite danger that war will find it both imbecile in defense, and eager for contest. Indeed, the history of republics has but too fatally proved, that they are too ambitious of military fame and conquest, and too easily devoted to the views of demagogues, who flatter their pride, and betray their interests. It should therefore be difficult in a republic to declare war; but not to make peace. The representatives of the people are to lay the taxes to support a war, and therefore have a right to be consulted, as to its propriety and necessity. The executive is to carry it on, and therefore should be consulted, as to its time, and the ways and means of making it effective. The cooperation of all the branches of the legislative power ought, upon principle, to be required in this the highest act of legislation, as it is in all others. Indeed, there might be a propriety even in enforcing still greater restrictions, as by requiring a concurrence of two thirds of both houses . . . . This reasoning appears to have had great weight with the convention, and to have decided its choice. Its judgement has hitherto obtained the unqualified approbation of the country."

Those sentiments resonated during the Indo-China war and again today. Yet, as said, the criminal gang of Republican politicians and lawyers, abetted by certain generals, have attempted, often successfully, to make the Executive a law unto itself with regard to fighting, torture, holding people in jails, pseudo judicial proceedings, secrecy, and what have you: Bush, Rowe, Rice, Cheney, Libby, Addington, Gonzalez, Bybee, Yoo, Chertoff, Rumsfeld, Wolfowitz, Feith, Miller, Sanchez are some of the culprits, but not all.

Just as bad as this criminal executive gang is that the Congress itself has thus far taken no steps to stop them from destroying the Constitution. Instead a supine Congress has gone along with everything from passing the Patriot Act without reading it, to not contemporaneously challenging lies used to persuade the country to enter war, to approving nearly an uncabined authorization of war which pretty much allows the Executive to fight wars against anyone and everyone it chooses, wherever it chooses, for as long as it chooses, to allowing torture to be de rigeur.
* * * * *

This writer has been wondering for awhile whether he should be for or against the nomination of Harriet Miers. Not that this blogger’s view matters. It doesn’t. Just like most people’s views don’t matter in this country. So call the wondering an exercise in abstract intellectual interest, if you like. You’d be right to do so.

Nonetheless, it has seemed to me likely that Miers has to some extent been getting a bad rap. True, she has no as-yet-known experience with high falutin’ constitutional law. And true, she is obviously a Bush sycophant. But she did manage to rise to the top of a law firm in an era when the cards were greatly stacked against women. Someone who rises to the top in those inevitably shark infested waters has to have some smarts and ability. One should also remember that, in making a success on the private side, she managed to do something that Bush himself never had the brains or ability to do. (Maybe she should be President, not him?)

Yet, now it has also come out that Miers has been making speeches lauding executive power, calling for its increase, and lauding the secrecy which contributes to an ever more powerful Executive. These speeches, it seems to me, should turn people who care about our country against her - - unless she is willing to recant in front of the Senate Judiciary Committee, which she’ll never do. To recant, she would have to admit de facto that she said these things only because she was a henchwoman for Bush. Don’t hold your breath.

One is aware of the argument that what a person says as a presidential aide of one sort or another can differ from what he or she says or does as a Justice. If memory serves, Justice Jackson even made this point about himself in his concurring opinion in the Youngstown Sheet & Tube case. But again, don’t hold your breath waiting for this to happen again. And the stakes for democracy are too high. Given what the Cold War and its aftermath have wrought, the stakes could be democracy itself. How many times, after all, do you want there to be a Jay Bybee or a John Yoo or an Alberto Gonzalez telling the President that he can do any damn thing he wants, and as for the law, well, as Commodore Vanderbilt is said to have remarked, "The law? What do I care about the law? I got the power, hain’t I?"

If there is one point (other than abortion?) on which the Senate Judiciary Committee ought to hammer during the confirmation hearings, it is Miers’ view of executive power, what she has said about it, and -- what nobody seems yet to have discussed -- what if any role she played in expanding it so that the Bush administration and its ideas have come to be a threat to America.
* * * * *

One simply cannot resist a crack at the media, which is so heavily responsible for allowing the situation discussed above to arise. In a recent piece, Paul Krugman, the New York Times columnist who is not really a columnist but in reality is an academic economist, blamed the media for the rise of George Bush. Krugman pointed out that he himself said in November of 2000 that Bush "‘valued loyalty above expertise,’" "like[d] to surround himself with ‘obsequious courtiers’" and "‘prefer[s] . . . advisers whose personal fortunes are almost entirely bound up with his own,’" Now, said Krugman, "Lots of people are saying things like that these days." Yet back in 2000 the media made Bush President by making Gore out to be a jerk, while largely "portraying Mr. "Bush as an honest, likeable guy."

Why did he get it right, asked Krugman, while the media generally got it all wrong. The answer, he says, is that he made his judgments by observing Bush’s actions in a field he knows something about -- knows a lot about: economics. The rest of the media made their judgments on the basis of "‘up close and personal interviews,’" which the public likes, but which are notoriously unreliable because the ability to judge character from an interview here or there is pretty poor. Also, the media, says Krugman, engaged in careerism: "Those who wrote puff pieces about Mr. Bush and those around him have been rewarded with career-boosting access. Those who raised questions about his character found themselves under personal attack from the administration’s proxies," as Krugman said had occurred to him. So even though journalists always knew it, says Krugman, only now are we "hearing about his coldness and bad temper, about how aides are afraid to tell him bad news."

Let me freely translate what I think Krugman was saying, in part sotto voce. The media was both stupid and careerist in regard to Bush. It presented judgments based on highly unreliable "impressions," did not know you-know-what from shinola about substance, and, one would add, didn’t care about substance. Someone who knew and cared about substance, on the other hand, could discern the truth. All of this, by the way, not only strikes me as plausible and indeed most likely right in all respects, but also makes me think it would be a very good thing if more substantively expert non journalists, like Krugman, had columns, TV shows, and radio shows. It seems to me that in this country it quite often takes people who do not depend on advancement in the media for their livelihood and careers to tell the truth that journalists should but do not tell, should tell but do not tell because they are ignorant, careerist, and/or care only about the horse race aspect of politics, not the substance of issues.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Tuesday, October 18, 2005

RE: Adler and Of John Roberts, Ben Stein, Richard Posner and George Bush

----- Original Message -----

From: "James Adler"
To: "'Dean Lawrence R. Velvel'"
Sent: Friday, October 14, 2005 12:21 PM
Subject: RE: Adler and Of John Roberts, Ben Stein, Richard Posner and George Bush.

Larry:

Thanks for your response. Please do keep me on your list and send me the materials about law school. Actually, I loved Michigan Law School and thought that it provided a great education. And, although it was far from ethnically (or gender) diversified when I was there (our class had no women although the classes in front of us and behind us had a small number), I did not find the place inhospitable to liberal thought.

Of the people you mentioned, I knew from Kansas City only Dick Atlas. Of course, I know Stan Zax and Alan Rothenberg. Stand was a classmate and we were going to room together in Washington until he decided to go back to Chicago to start his legal career. Also, I've done some legal work for Stan's company and have invested once with Rothenberg (in a soccer team that didn't fare well financially although it may have done well on the field).

I have no knowledge of any numerical grades at Michigan or whether I did better on one or more tests than anyone else who got at A. If that type of information was available to students, I was unaware of it. You're right, however, that Stan was very smart--he still is. As to writing two thesises (theses?) at Princeton, that's not right. I was an engineer and so might have been able to get away with not writing one, but I did chose to write one. So maybe I did write one more than I needed to, but I definitely wrote only one.

With regard to Miers, today's LA Times has an interesting story concerning her writings when she was President of the Texas State Bar. She defended lawyers (even trial lawyers), diversity, etc. She may have changed some since, but she has the kind of background that I think could make for a good justice. Of course, Truman appointed some cronies who proved that being a Presidential crony does not insure a quality justice.

Among my accomplishments that you didn't mention were converting the Law Review from a faculty controlled publication into one controlled by the students and starting a faculty/Law Review softball game. Did the game survive during your tenure? We initiated the game by suing the faculty in probate court in Ann Arbor and asking that the Law Review be declared the guardians of the faculty. To prove their competence, the judge ordered that they engage in the softball game. Paul Kauper umpired. The Law Review won and a good time was had by all. I know the game did not survive too long, but I hope it was still being played when you were a junior and senior. You can't believe the tears and angst when we determined to substitute the "Harvard" Blue Book as the style guide for the Law Review. Up until then, Michigan had its own.

More later. It's fun to reminisce. Publish if you think there is any interest or value.

Incidentally, how are you so prolific if you don't type?

Jim

James N. Adler
adleradr.com
1034 Selby Ave.
Los Angeles, CA 90024-3106
(office) 310-209-8548
(fax) 866-400-3972
(email) jadler@adleradr.com
(web) www.adleradr.com


-----Original Message-----

From: Dean Lawrence R. Velvel [mailto:velvel@mslaw.edu]
Sent: Friday, October 14, 2005 7:54 AM
To: jadler@adleradr.com
Subject: Re: Adler and Of John Roberts, Ben Stein, Richard Posner and George Bush.

October 14, 2005

Dear Jim:

I really appreciate receiving your email. The fact that we did not meet at Michigan was my loss, not yours.

You know, I actually knew of you before I got to the law school. Several people from Kansas City were undergraduates in my class at Michigan, or were one year ahead of me, and conceivably you knew some of them. I am thinking of Dan Schlozman, who went on to medical school somewhere, John Eisberg, who went on to Yale Law School and has lived and practiced in Minneapolis for decades, Dick Atlas, and Herb Kohn, my freshman roommate, fraternity brother, and law school classmate (who has had a smashing career in Kansas City). Anyway, while I was still a senior in the undergraduate school, Eisberg, in what truly was an obvious fit of K.C. chauvinism and pride, told me that there was a fellow from Kansas City named Jim Adler who had a straight 4.0 at the law school. He also told me -- is this true? -- that at Princeton, where, he said, every senior had to write one major "project" paper, you had written two. So, due to John, I knew of you going in, so to speak, though we never met or spoke at the law school as far as I can remember.

After I graduated from the law school, I ran across you once in D.C. in the summer of either 1964 or 1965, although again we did not meet or speak. This occurred when I was on a team that played in a slow pitch softball league at a field somewhere around Hogate's and The Flagship. (We used to change clothes in a bar down the street, if I remember.) We played one game against a team that you played on. My memory is that you played right field and showed some ability. I remember that we thought it quite unfair that a fellow whom we believed must be a genius was not a physical klutz. Oh well, Einstein sailed.

I'm glad that at least some of the things I wrote were true or conceivably true. (I would really hate to have made everything up out of whole cloth, you know.) Occasionally, Dick Posner will let me know that I have gotten some fact of his life wrong, but usually, I'm glad to say, the error is inconsequential. Various major points regarding yourself -- that you typed, the straight four point average and the fact that you were miles ahead of others on tests -- were either clearly right or, as with the miles ahead point, including that you once got in the 180s when the next highest grade was in the 140s, were not said by you to be wrong, and therefore, I assume, were right. (Incidentally, it was my understanding -- am I correct? -- that the guy who had the next highest grade on that test was Stan Zax, who, believe it or not, was the very first guy I met in any fraternity when I rushed in the fall of 1956. (That I can remember such inconsequential things from 49 years ago, is, of course, a testament to the fact that my life for the last half century must have been unimaginably uneventful and boring.) I don't know that anyone at the undergraduate school expected Zax to be the brilliant law student that he was -- I may be the only person who did reasonably well at the law school of whom less was expected by those who knew us as undergraduates. But though he did brilliantly, Zax ran into you -- ah well, Gehrig had his Ruth.

I really agree with the things you said about Roberts and Miers and nominating persons who have not been judges. But, on an opposite note, I was sorry to hear that Stason may have gotten a 4.0 before you -- apparently about 40 years before you. (If he did, it was a long time between 4 points, no?) It would have been nice to continue thinking that there almost certainly had been only one person who received a 4.0. Also, I have occasionally heard things about Stason which, if true, could cause one to regret that it was he who may have been the only person to equal your average. But whether what I've heard was true is not something I know personally.

By the way, if someone has exceeded your numerical average because Michigan now gives A plusses, I wonder whether that person or those persons ever got a grade lower than an A? If he or she or they did, it doesn't count, you see, no matter what the numerical average was due to the advent of A plusses.

I have written of the Michigan and Harvard law schools of the time at pages 67-113 of the first volume of a quartet I recently wrote. (The quartet is a fictionalized memoir ala some of Siegfried Sassoon's works, and the first three volumes have already been published.) The chapter in question is called -- fittingly, I guess -- "Law School In Cambridge and Ann Arbor." (I had friends at Harvard at the time and later, living in Washington, D.C. for a total of 19 years, have been inundated with Harvard types.) I really don't know whether you would agree with my views of the Michigan Law School of the time; my opinions are extensively critical. But I would certainly be interested in any views you care to express, including criticisms of my own views, and am taking the liberty of sending you the first volume so that you can, if you wish, read what I've had to say in the chapter about law school and can respond if you wish.

Some last points. I would really like to print your email on my blog.

Printing responsive emails like yours has the double benefit of providing human interest and correcting any prior mistakes. At the end of my blog postings is a statement saying that I may post responses unless their writers say they desire me not to, and you did not say that, but I nonetheless would like to get explicit permission before posting what you wrote. I hope you will allow this, since there really is a human interest side to the matter.

I have also asked my secretary to add you to the list of regular recipients of my blog postings. If you object, or feel generally overwhelmed with reading material, please just tell her to delete your name. To tell you the truth, though, I hope that you will not have your name removed and will, to the contrary, occasionally write things for posting on the blog. There are a small number of accomplished people whose pieces or views have occasionally been posted there: Professor Anthony D'Amato of Northwestern; Dick Posner; Peter Young, a Los Angeles lawyer; Alan Rothenberg, another Los Angeles lawyer (of whom you probably have at least heard, since Al has been a force in LA and in California itself for many years (he also was a close friend and college and law school classmate of mine)); Scott Horton, a well known Wall Street civil rights type lawyer. Anything you might care to contribute would be a welcome addition, and I would greatly value your participation.

Well, in concluding, let me thank you again for the email. It was a really pleasure to hear from you.

All the best.

Larry Velvel


----- Original Message -----
From: "James Adler"
To:
Cc: "'Goldman, Alvin L'"
Sent: Wednesday, October 12, 2005 8:45 PM
Subject: RE: Adler and Of John Roberts, Ben Stein, Richard Posner and George
Bush.

Dear Dean Velvel:

I wish we had met at Michigan. I ran into Alvin Goldman Saturday night (I think he must have been in town because of all the celebrating here of Ben Aaron's 90th birthday) and he told me of your blog and your references to me. I loved your blog. Perhaps because I too am a mid-western Jew.

In any event, some of what you said about me is true: I did have a 4.0 average (since exceeded I am told due to the A+) and did type. Actually quite a few of my classmates type, so that would not have tipped off the professors--but perhaps the manner of my typing would have. I still mistype so badly on occasion that even spell checker has no idea what word I intended. And I don't know about the unmarked booked. I underlined to a great extent--but not like Burt sugar, who was a class or two ahead of me and underlined in 4 colors. And as to a one word answer on a tax exam doesn't sound like me, but maybe it was. In any event, it was fun to relive those days through your eyes. Incidentally, E. Blythe Stason, who was the dean at Michigan when I arrived, preceded me with a 4.0 average--or so the rumor when.

After I left Michigan I clerked for Justice Whittaker and upon his retirement that year finished the year with the Chief. My experience on the Court led me to believe we should not make the appellate judge pool the primary pool for Supreme Court Justices. I think the best Justices had life experiences which made the judgments better. Persons who had been isolated on an appellate bench weren't as likely to have rubbed shoulders with real people.

I agree that we don't know what we got in Roberts, but I know we could have done worse, and unfortunately--very unfortunately--Bush won the presidency--this time more or less fair and square (or are they still counting in Ohio). It will be interesting to see how his next Choice fairs. Again we could have dones a whole lot worse (how do you spell Janice Brown), so I'm actually hoping she gets confirmed.

I'd love to continue this--after all I do type--but I need to urn since my son and grandchild just arrived. Thanks for your kind words.

Sorry, I could only spell check, and not proof this.

Jim Adler

James N. Adler
adleradr.com
1034 Selby Ave.
Los Angeles, CA 90024-3106
(office) 310-209-8548
(fax) 866-400-3972
(email) jadler@adleradr.com
(web) www.adleradr.com

-----Original Message-----
From: Goldman, Alvin L [mailto:algold00@email.uky.edu]
Sent: Wednesday, October 12, 2005 10:58 AM
To: jadler@adleradr.com
Subject: FW: Of John Roberts, Ben Stein, Richard Posner and George Bush.

Dear Jim,

This is the posting from Velvel I mentioned when we saw you at the restaurant last Saturday evening. It is long and his reference to you don't come until more than halfway through the piece, so it will need some patience. However, I thought you might be interested in seeing it.

Sincerely,

Alvin Goldman

-----Original Message-----

From: Dean Lawrence R. Velvel [mailto:velvel@mslaw.edu]
Sent: Tue 9/27/2005 11:30 AM
To: Undisclosed-Recipient:;
Subject: Of John Roberts, Ben Stein, Richard Posner and George Bush.

September 27, 2005
Re: Of John Roberts, Ben Stein, Richard Posner and George Bush.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

This post shall discuss a potpourri of subjects that have no necessary logical connection, but nonetheless can be connected, and in this writer's mind are connected by free association.
It is clear that, barring something wholly unforeseen, John Roberts is going to be confirmed by the Senate. Even Democratic Senators of whom one might never have thought it - Leahy, Finegold and Kohl -- voted for him in Committee. As remarked here before, people of my acquaintance think very highly of him, and his appearance before Congress made it clear to all that he is smarter than Hades, well spoken and charming, not to mention possessed of great stamina and patience.

Frankly, though one gathers that many Senators on the Judiciary Committee considered the entire matter to be, and treated it as being, one of utmost importance, to watch the hearing was largely to watch a highly knowledgeable intellect overmaster a bunch of windbags. That some of the Senators -- oppositely to Senator Sessions, for example -- may have had justice and decency on their side did not alter the impression one received. They were overmatched. One against eight were pretty good odds for Roberts.

In a way, though, one can hardly blame the Senators, windbag politicians though they are. For they were trying to take on, on his own turf, an expert in a huge field. They might have known more about Roberts' field than they would know about string theory, for example, but their level of knowledge and their ability to manipulate the concepts were still infinitely less than Roberts'. They were often reduced to spluttering generalities.

Though Roberts overmatched his interlocutors by light years, his victory was no victory for "the better angels of our nature." At least not now, although only God knows what the future will hold. It was, rather, a victory for some of the less desirable aspects of our judicial and political systems. As discussed here previously, and for the reasons given then, Roberts acted very unethically by continuing to sit on the Guantanamo case while he was being repeatedly interviewed by high administration figures with regard to a potential, and then an actual, Supreme Court opening. If there is one thing Roberts could not have failed to know, it is that a decision contrary to the administration's ardent wishes in the Guantanamo case would doom any hope of appointment to the Supreme Court. Yet he continued to sit on the case. This was shameful, not to mention infuriating to anyone with a sense of ethical decency. (If you wish to read this last remark as an implication that in this instance, at least, Roberts lacked even rudimentary ethical decency, feel free. Such seems all too typical, moreover, of this generation of administration Republicans, who seem to feel they are anointed by God to bring back values and thus may permissibly do whatever they wish, however wrong lesser mortals may think their actions.)

Roberts' victory in the Judiciary Committee was also a victory for that bane of decent government (and decent corporate and other behavior), secrecy. In every human endeavor, secrecy is the fount and nutrient of evil -- which is why Brandeis said that sunlight is the best disinfectant. Here the administration -- as is its wont -- refused to turn over documents, and Roberts often refused to say what he thought about issues in past cases.

Such issues might come before him in the future, after all, and he would not want a litigant to think its' case was prejudged. Or so we were told.

The last argument is, it seems, an oft given excuse. It is quite surprising to me that nobody seems ever to have brought forth the obvious and inarguable responses. To wit: "Well, Judge, after you have written (or even merely joined) your first opinion on the matter, all subsequent litigants will know what you think, and can equally feel prejudged. So why shouldn't you tell us now what you think? You will be no more or less free to change your mind after further consideration than after your first opinion. And if your current opinion is merely tentative, you can tell us that too, and you will be even freer to change your mind than after your first opinion, because the latter is a legal precedent."

Sometimes, of course, a nominee is, like Roberts, already a judge, and may have opined on an issue as a judge, may have opined beyond the usual excuse, often bushwa, of "Supreme Court precedent made me do it." When this is so, future litigants on the issue will know what the judge already thinks. So, once again, why shouldn't someone know what a Roberts thinks?

These points are all so obvious that one wonders why they seem never to have been written about. (Or have they, but I don't know it?)

Roberts' victory is also a defeat for another idea, a most unpopular one, however. When asked whether he believed some of the abominable stuff he wrote in the Reagan administration, Roberts kept ducking the question by saying it had to be remembered that he was working for certain people, e.g., William French Smith. Well, who said he had to work for those people? If he didn't agree with them, why did he work for them? He was, after all, a top graduate of Harvard Law School, and a former Supreme Court Clerk. He could have had gazzillions of prestigious -- and high paying -- jobs. If he worked for W.F. Smith, Reagan, etc. while disagreeing with the abominable views in his memos, he should be censured.

That this seems to have occurred to hardly anyone -- except Nancy Grace and Ted Kennedy -- is a measure of the extent to which people's minds have been taken over by the evil concept that a lawyer merely represents a client and should say whatever may work on the client's behalf. It is also a measure of the extent to which careerism uber alles, represented here by saying what one assumedly did not believe, has become the dominating American creed.
Of course, in reality nobody believes (do they?) Roberts' attempt to elide his prior nasty comments by implicitly claiming that he was merely representing his bosses' views. It is pretty certain that he damned well did believe what he wrote -- and that that was why he wrote it -- and is now either seeking to escape the consequences of what he said and believed then or seeking to signal a possible change in views without owning up to what he believed and said. Or both. Yet, no matter which, each alternative is a form of careerism, is it not, and, in this respect, not a whit removed from continuing to sit on a case of vital importance to, and deciding in favor of, those who are passing on his nomination?

For those Democrats on the Judiciary Committee -- Leahy, Finegold and Kohl
-- who voted in favor of Roberts, their votes represent a triumph of hope over common human experience. As Alan Dershowitz said on television during the hearings, a judge's political views invariably govern his constitutional ones. Or to put it differently, constitutional views invariably comport with political ones. (Anything else might cause unbearable cognitive dissonance.) There are not many like Holmes, you see. And nobody has yet accused John Roberts of being a political liberal. Leahy, Finegold and Kohl are simply hoping against hope that Roberts won't turn out to be a political reactionary today and tomorrow, as he apparently was in the early 1980s.

There was one matter about Roberts' background that, as far as I know, never came out at the hearings. Roberts grew up, as was occasionally pointed out in the media, in a town called Long Beach, Indiana. Long Beach is part of the Indiana lakeshore (Lake Michigan's eastern shore), in a general area of northwestern Indiana and southwestern Michigan that includes Michigan City, St. Joe, and Benton Harbor, as well as smaller villages and communities like New Buffalo, Union Pier, Lakeside, Michiana Shores and South Haven. If my memory from the 1940s and 1950s is correct, all or some of this is located around, at least roughly speaking, what are known as the Indiana Dunes.

When I was a small kid growing up in Chicago in the mid and late 1940s, my family used to drive to that part of Indiana for vacations. We would pass through Long Beach, and, again if memory serves, my parents would point out the large house of another Leahy, Frank Leahy, the great Notre Dame football coach. And, at least among "my people," so to speak, Long Beach was thought to be an anti-Semitic place. Certainly there had been, around World War II, Bund activity around the general northern Indiana/southern Michigan lake shore area. For those too young to know about such things, the German-American Bund was a pro-Hitler, pro Nazi, antisemitic organization.

Now, unless my memory or the information it contains are wrong, or unless there were dramatic changes of which I've not heard, John Roberts grew up in an area and among views that, to put it mildly, could not be described as left wing, or liberal, or politically correct. (Forgive the sarcasm.) One wonders what effect this had on him, and one is not comforted in this respect by the things he wrote while in the Reagan Department of Justice.

(And what did he write, that Bush will not let us see, when in the Solicitor General's Office?)
To be sure, the last thing in the world that one wants to say, the last accusation in the world that one wants to level, is that Roberts is a bigot.

At Harvard College, at the Harvard Law School, in Washington, D.C., and in his well known law firm, Roberts has been in contact with, has been practically inundated by one might guess, large numbers of Jewish Americans, and has known, probably to an ever increasing extent, African Americans.

Except for some of the language of his early memos, I know of no actual evidence even to suspect him of bigotry, and the diverse company he likely has kept certainly argues against it. Yet, unless my memory or the information of those long ago days of the 1940s is wrong, or unless there was a great change in the milieu, the views that likely surrounded Roberts in his youth give pause when he refuses to answer questions relating to the welfare of minorities. It gives rise to fear that, God forbid, the hope for Roberts implicit in the votes of Leahy, Finegold and Kohl could prove to be a triumph of hope over sense and experience. But let us hope not.

* * * * *
As one pundit put it during the Roberts' hearings, Roberts shows that one born to privilege can rise to power. Of course, we already knew that, didn't we? Viz. John F. Kennedy and the two Georges Bush. The lives of such people, especially the life of the drunken, serial corporate failure/playboy who became President, contrast dramatically with a situation that was described by Ben Stein in a New York Times' article of January 30th -- by the Ben Stein of "Win Ben Stein's Money," which is pretty hard to do because he is awfully smart.

Stein is an accomplished guy, being a lawyer, writer, actor, economist and television personality, with a regular Sunday article in the Sunday Business Section of The Times. In the article of January 30th he tells of career advice he received from his father, circa 1958. He makes plain that his father was in a position to know whereof he spoke, because he was director of research, and wrote papers on tax, trade, labor policy and other major issues for the Committee For Economic Development, and "knew the top people in business in the nation at the time," albeit "not as a social equal" though "he was at least their intellectual and moral equal." "And he did know the world." Stein's father, you see, though Stein does not say so in this particular article, was Mort Stein, who later became head of Nixon's Council of Economic Advisors.

Stein wrote the article to show how much the American world has changed since 1958, when he talked to his father about possible careers. Today, says Stein, we have made "stunning, unbelievable moral progress. It is a whole new world, a new universe of equality of opportunity." "Every job in every field is open to everyone," he continues, "with perhaps a very few exceptions" -- a statement which strikes me as quite an overstatement, although one takes his general point. Women and blacks run large corporations, Stein says, "Jews are hired at law firms that would not have let them in the door during my youth, except as tailors," and are "the heads of industrial corporations where they would not have been considered for interviews in 1958." Asians and Hispanics "are rising everywhere," Asians in technology especially and Hispanics "in the media, law and other fields."

But it was not ever thus, and it was not thus in 1958 when Stein sought his father's advice on a career. Mort Stein asked 13 year old Ben "what careers I was interested in." "'Well, I love cars, and I think I'd like to work at General Motors or, even better, Ford.'" Mort Stein told him to forget it.

"'Actually, Benjy, auto companies don't really take Jews in executive positions.'"
Asked to make another choice, 13 year old Ben said "'maybe advertising. I like the idea of working on commercials.'" Forget it, said Mort. "'I have to tell you that Madison Avenue doesn't really take Jews either, or at least not much.'" Ben then said maybe banking. "'That's a neat place to work.'" "Now my father looked really unhappy. 'They really don't take Jews at a high level or even a low level either at the big banks,' he said."

"It was a sobering conversation for a 13-year-old and, as you can tell, I remembered it vividly."
"That was the business world then -- highly restricted against Jews. And locked absolutely tight against blacks, unless they were washroom attendants or manual laborers. (The junior high school I attended, in the Maryland suburbs of Washington, had been desegregated only 18 months earlier.) For women, there was the world of typists and receptionists. Asians and Hispanics were hardly a business afterthought. That was it in free, white America in 1958. It was a white Christian men's club, and it was not that long ago."

Well, this writer, being about five or six years older than Ben Stein, and like him born of Jews, grew up in that world and well remembers it. One remembers that there were hotels one could not go to, restaurants where one could not eat, universities -- especially some Ivy League ones, whose graduates practically run the country for God's sake -- where one's chance of admission was quite low, fraternities that would not consider you, law firms galore that would neither interview nor hire you though you were in the very top part of your class at a major law school (while Christians in the middle of the class were inundated with offers), and practically a whole country that scorned you as being part of a people who, contrary to the American ethos, were thought to generally be small, weak and non-athletic -- which is a reason why lots of Jews of my generation thanked God every day for the martial, and therefore inevitably physical, example of the mailed fist of the Israeli army and air force.

I have written extensively of all this in Misfits In America, and shall not repeat most of it here. But I remember it well, and not without some real bitterness. For while America fooled fools like me with its pretense that in the United States all things are possible for, and all obstacles can be surmounted by, anyone who is intelligent and works hard, the truth was quite different, and still is. There were outside, artificial limits on sons of immigrants, on Jews, on blacks, on women, and all the intelligence and hard work in the world could not surmount those limits.

There are people who tell me that anger is misplaced because, they say, one has done fairly well. And I would certainly say that Ben Stein has done very well. One would also say, with Ben Stein, that today the situation is infinitely better than in 1958, so that today a far smaller percentage of the population faces what people of our generation faced and are subject to artificial limits that were placed on us. Yet, as Stein conceded, "Of course we [still] have problems." Given our history, and given that we still have problems, there are lots of people who fear John Roberts, this son of Long Beach, this scion of Long Beachian privilege who will not answer questions relating to whether he will seek to continue the forward march Ben Stein speaks of so ardently, or will instead seek to turn back the clock to the days of Long Beach in the middle of the 20th century.

In an article about John Roberts in the most recent issue of The New York Review of Books, William Taylor asks the "intriguing question" of why did this "young person whose success in life was virtually assured by family wealth and academic achievement . . . enlist in a political campaign designed to deny opportunities for success to those who lacked his advantages? It is a question of great relevance to Roberts's candidacy for the Supreme Court. As the late Charles Black has written, no serous person is under the illusion that 'a judge's judicial work is not influenced . . . by his sense, sharp or vague, of where justice lies in respect to the great issues of his time.'" We do not know the answer to Taylor's "intriguing question." And, with fine irony, the three Democrats who are taking a fling on Roberts without knowing the answer -- Finegold, Kohl and Leahy -- include two Jews, the people whose limited opportunities not so long ago were written of by Ben Stein, and a descendant of the Irish, a people against whom discrimination was so deeply bitter and greatly prolonged when they immigrated to this country in the 1840s and 1850s that they were portrayed as monkeys in cartoons throughout most of the remainder of the 19th Century.

One wonders if these three Senators have forgotten where they came from now that they personally are big deals politically.

Of course, many would say that it is a measure of the greatness of this country, of the opportunities it provides, that these three can forget where they came from in deciding on John Roberts. Personally, I prefer the wisdom of Santayana. One is not aware that history has as yet overthrown his dictum.
* * * * *
Richard Posner is a conservative, but a most interesting contrast to John Roberts.
Though I did not meet him at the time, I first heard of Posner when he came to the Solicitor General's Office of the Department of Justice circa 1965 or so and I was writing Supreme Court briefs in the Appellate Section of the Antitrust Division of the Department. He quickly became legendary for the speed and therefore the extent of his work. It was a bittersweet joke told by other members of the Solicitor General's Office that Posner, due to his speed, not only was doing his own work, but was taking over everyone else's work in the office, too.
Posner, you see, typed. Today, when everyone seems to type (except Alan Dershowitz (and me)), it may be hard for most people to understand the great advantage possessed in those days by the few lawyers who knew how to type.

Let me tell you a story that further illustrates this point.

Two years ahead of me in law school was a young man named James Adler. In those days, when an A was the highest grade one could get in a course at the Michigan Law School (whether this is still true today I do not know), Adler graduated with a straight A average, a perfect 4.0 average. (He was also editor-in-chief of the law review.) To the best of my knowledge, graduating with a straight A, or straight 4.0, average at the Michigan law School was unheard of in those days. For all I know, Adler may have been the only person who ever did so up until then, and I suppose it is possible he still may be (unless one can get A pluses these days, which would count for 4.3).
A handful of extraordinarily bright people were known to have graduated with approximately 3.9 averages over the years, but a straight 4.0? Impossible.

But Adler did it.

Adler must have had some kind of truly unusual mind. Coming along two years after him, I once bought a used casebook that had his name written in it as the prior student owner. There was not a mark in the book -- no underlining, no check marks, nothing. There was also a story around the school that Adler had gotten a score of about 187 or 189 or something like that on a test on which the next highest score was about a 148 -- the score of a fellow who himself graduated with a very unusual average of about 3.8 or 3.9. Yet another story around the school was that a final exam in tax law had had three questions. The third question asked whether the answer to question two would change if, instead of facts A and B, you substituted facts C and D.
Adler's answer, it was said, was one word: no. Looking at that question in the library's file of old exams two years later, it was obvious that the answer was no. But with a 4.0 average possibly on the line, who could have had the guts, the confidence, to simply write the one word, no, without any explanation of why the answer was no? According to the story, Adler did.

So Adler obviously was a young man of truly unusual intellectual gifts. And, adding to his gifts, he had one other advantage, the same one Posner did. He typed. He typed his exams at a time when very few others did. Without taking anything away from Adler's truly unusual mental gifts, any law professor can tell you that a typed, and therefore easy to read exam, starts with an advantage when being graded. It has an advantage over a quickly written, often difficult to read handwritten test no matter how smart or knowledgeable the scribbling writer may be.
We used to jokingly say that, given Adler's grade point average, any professor who did not give him an A would feel compelled to reexamine his grading. And given that Adler was one of only a precious few who typed his exams, it would have been hard, after Adler's freshman year and his remarkable 4.0 average that year, not to know which exam paper was his even though we put numbers, not our names, on tests. But be all this as it may, Adler obviously had truly unusual gifts.

So, as the Adler story further illustrates, that he was able to type gave Posner a leg up in the Solicitor General's Office in the mid '60s. But he too, like Adler, possesses unusual gifts, and decades later, when everyone typed (except perhaps Alan Dershowitz (and this writer)), Posner was still producing far more work than anyone else (with Dershowitz perhaps being the only one who is even within hailing distance in certain respects).

At some point Posner left Washington, D.C.. He was at Stanford Law School briefly, and then settled in at the University of Chicago Law School, where he created -- I think created is a fair word for it -- the law and economics movement and, I believe, started a consulting firm as well as taught and wrote. Then he went on the federal bench as part of Reagan's conservative movement, a movement one thinks in the overall lamentable notwithstanding that it brought someone like Posner to the bench, and a movement for which the country is paying and will continue to pay notwithstanding all the supportive conservative propaganda of the last 25 years from so many think tanks, professors and politicians.

I have to regretfully admit that, for a considerable period, this blogger thought of Posner as simply one of Reagan's conservative henchmen, since he is reasonably conservative, and seems to see most things in light of and to explain them by means of abstract, bloodless economic principles. But I began to change my mind drastically about 12 years ago when I read two 1993 articles by Posner. In one, which was later incorporated into one of his books, Posner lambasted a very famous, oft cited 1959 Harvard Law Review article by Herbert Wechsler on so-called "neutral principles" of constitutional adjudication. Without getting into all the ins and outs of the "neutral principles" argument, suffice it to say that Wechsler's view treated the real world consequences of constitutional adjudication as being more or less irrelevant. That a decision be consonant with prior ones as a matter of abstract legal logic divorced from real world results was, rather, the desideratum, even if this meant we would have racial discrimination or other evils. This idea was outrageous to me as a believer in social justice who had not had this idea exorcized even by three years at the conservative Michigan Law School of the day, a school where the very air we breathed was suffused with the idea that the promotion of big business is the only proper goal of lawyers. So, as a kid of 24 or 25 who was outraged by Wechsler's view, I wrote about it in an article that, after being rejected by the truly big shot law reviews of the day, actually got published in the UCLA Law Review, which wasn't too bad a result even though that law school was still fairly new at the time.

But, although the article probably wasn't too shabby, it was, after all, the product of a young kid of 24 or 25. So, when I saw almost 30 years later that the renowned and conservative Richard Posner had eviscerated Wechsler's piece in ways that a 24 or 25 year old kid had never dreamed of 30 years before, but as part of the broader evisceration had also lambasted Wechsler's lack of professional concern (as opposed to human concern, which he had) for real world results . . . well, this was, to say the least, interesting.

Also in 1993, Posner wrote an article in a Michigan Law Review symposium that addressed the criticism of legal education and legal writing leveled by Judge Harry Edwards, himself a Michigan graduate. Put in brief compass, although Edwards is considered a liberal, his fundamental criticism of legal writing was that it wasn't sufficiently "doctrinal," as it is said. Instead of being about legal doctrine, too much legal writing, especially at the so-called "elite" schools, is about sociology or economics, or philosophy, etc.

Posner leveled both barrels at this criticism. One of his barrels was more than a mere whiff of grape detailing the benefit that such so-called "interdisciplinary" writing has had. Posner started with the field he knew best, law and economics. Admitting that its transformation of antitrust law is regarded by some as merely providing intellectual cover for conservative social and political results desired by judges, he said that he himself thought the transformation of antitrust was desirable, and that law and economics had also contributed to such widely approved results as the deregulation of transportation and communications, had contributed to the awarding of hedonic damages (damages "for loss of the pleasure of living"), had given economic arguments to women in divorce cases, had provided new lines of proof in employment discrimination matters, and had had desirable effects in numerous other fields too. Turning to non-law-and-economic matters, he indicated that feminist writings have had an effect "on rape law, sexual harassment, employment discrimination," that testimony by political scientists has had an effect on reapportionment cases, that "a literature informed by philosophy and literary theory" has affected constitutional and statutory interpretation, and so forth.

No doubt, in some areas where effect is seen by Posner, such effect is politically conservative. In others, though, the effects would almost certainly seem politically liberal -- which brings one to the major point here. As shown by areas where the effects are liberal or at least would likely be considered such today -- hedonic damages, economic arguments for women in divorce cases, sexual harassment and employment discrimination -- Posner is not reflexively conservative, is not always and unthinkingly conservative. He considers and adopts liberal positions, I believe, where he thinks them the stronger. He does not consider them the stronger nearly as much as this writer might, but he surely seems not to be closed minded, and for sure he is not blind to merits in arguments on the other side of his own.

These two 1993 articles caused this writer to reassess his view of Posner's work. One knows there are lawyers in Chicago who have regarded him as arrogant or sharp towards lawyers when on the bench, or as sometimes inventing facts or a new, possibly idiosyncratic view of a case. And one may not agree fundamentally with his intellectual approach. But the fact remains that he is one smart dude who has written publicly about so many things that it seems he has written publicly about everything, and -- very importantly
-- whose mind is open to good arguments.

In certain of these respects Posner contrasts dramatically with John Roberts. Roberts also is very smart. But he seems to have avoided a public record, documents that might reveal his more recent views have been withheld, and his refusal to answer questions means that fundamental views he may now hold are unknown. Holding unknown views seems almost a prerequisite these days to nomination and confirmation as a Justice, and is one of the reasons a man like Posner cannot be nominated. (Other reasons he wouldn't be nominated by Bush are that his writings, as I think he has said on television, have created lots of opponents, he is not a right wing zealot, and he is unlikely to be on the bench for 30 years to impose right wing zealotry for three decades). All one can say about this is that it is a shame that a man as smart, accomplished and publicly understood as Posner cannot be nominated, while the opaque and reticent can be and, indeed, perhaps one need be opaque and reticent to be.
* * * * *
Which brings me to George Bush. George Bush is not smart as hell, very competent, and accomplished, as Roberts, Stein and Posner are. He is, rather, dumb, a former drunk who was a serial failure in business, an incompetent as he has been intent on proving with regard to Iraq, social security, New Orleans and other matters, and a great user of platitudes as well as an afficionado of photo ops instead of achievement.

George Bush is a child of privilege, as Roberts was and as Stein may in some respects have been because his Dad was so accomplished. But unlike Stein, any and every field was open to George Bush. He got into a few of them and managed to pretty much eff them up.
Unlike Roberts, Stein and Posner, all of whom succeeded outside of politics, George Bush succeeded only in or because of politics, that den of bushwa and iniquity, and succeeded there only because of who daddy and grandpa were.

Unlike Roberts, Stein and Posner, who as far as I know have committed no crimes, George Bush has been in criminal violation of the Anti-Torture Statute for years. One would venture that, if it hasn't occurred already, you can bet that before Bush leaves office there will be a lot of destruction of documents and computer disks, and lots of attempted purging of hard drives, in the White House, the Department of Justice and the Pentagon in order to try to permanently hide the extent to which Bush and his pals are guilty of crimes.

And unlike Roberts, Stein or Posner, George Bush is the man our system has thrown up, in both senses of the phrase, to be President. Thrown up not just for one term, no less, but, heaven help us, for two.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Friday, October 14, 2005

Re: The Times Finally Admits There Is A Law Against Torture

October 14, 2005

[[[audio]]]

Re: The Times Finally Admits There Is A Law Against Torture
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Shall we say "Hallelujah"? On October 8th, in discussing Senator McCain’s bill to "ban ‘cruel, inhuman or degrading’ treatment of prisoners," the editorial page of The New York Times, in the lead editorial no less, said that such conduct, "by the way, is already against American law . . . ." Glory be -- the grey lady of Time Square recognized what none of the news media has had the guts to say, what none of the lily livered Democrats have been willing to say, what even John McCain, as far as I know, has been unwilling to say: that there is a federal statute barring Americans from torturing prisoners outside the United States, a point extensively elaborated here several times.

True, The Times’ statement was not a focal point of its editorial, but was a mere aside in the course of supporting McCain’s bill and opposing the Administration’s effort to quash it. True, The Times did not say that the already existing law barring torture by Americans outside the United States is a criminal law. True, The Times did not say that this criminal law makes it not a mere misdemeanor but a felony to torture persons outside the United States. True, The Times did not say that the felony is so serious that it can be punished by up to life imprisonment or capital punishment. True, The Times did not say that the statute also makes it a crime to conspire in the torture of persons outside the United States, with the crime of conspiracy being so serious that it is itself punishable by up to life imprisonment. True, The Times did not say that the crime of conspiracy to torture outside the United States, being a felony, is an impeachable offense. True, The Times did not say that evidence repeatedly presented on its own pages shows with near or total conclusiveness that George Bush and lots of his henchpeople are guilty of the felony, the impeachable offense, of conspiring in the commission of torture outside the United States.

True, all true. Yet, for the first time as far as I know, some major publication has said -- would "reluctantly conceded" be more apt? -- that there is a law against torture. That I imagine, constitutes progress in these days when the media is populated by Casper Milquetoasts, not Tom Paines, when the government these Milquetoasts fear does not consider itself bound by law, and when the Democrats and liberals are pretty much spineless (and unprincipled).

Who knows? -- now that The Times has admitted that there is a law against torture, maybe some other media outlets will do the same. One can hope, can’t one? -- even if hope usually turns out fruitless in these United States?*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Thursday, October 13, 2005

Re: Corruption, Elitism, and We Commoners

----- Original Message -----

From: hoybean@comcast.net
To: Dean Lawrence R. Velvel
Sent: Wednesday, October 12, 2005 8:52 AM
Subject: Re: Corruption, Elitism, and We Commoners

Dear Larry:

Here's a true story that illustrates my point. About five years ago, I was killing time in a lawyer's office in Texas, awaiting my turn as an expert witness. In a conversation with the secretary, I was the recipient of more information than I either wanted or needed. It seems that her husband had several affairs and with revenge on her mind, she decided to have one (or maybe more) on her own. The end result was a bloody divorce with battles over money, kids, etc. I gladly switched the subject and asked her if her children had either read the new Harry Potter book or seen the movie. Her response was startling. "Oh no sir, the church would not allow such a thing." Ah ha, the contrived cultural wars roared its head. Ergo, while I'm in agreement with your message, I have found that many outspoken critics of the Bush Administration would still vote for the guy when pitted against a spineless and at-best, undefined, Democrat. While a third party is a good idea, how practical this would be is open to debate. I recommend that all Democracts in Congress over the age of 50 voluntarily resign, so that a new generation can "hopefully" fill a void that beckons in capital letters.

Harvey


-------------- Original message --------------

October 11, 2005
Re: Corruption, Elitism, And We Commoners.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com


Dear Colleagues:

We live in grand political times. One after another, we learn of powerful figures in, or connected to, the ruling class of Republicans who either are pretty clearly crooks, likely to ultimately be shown to be crooks, or close to the line of crookedness. Do the names DeLay, Safavian, Abramoff or Frist mean anything to you? We learn of high Republicans who, it may well be shown, will do anything to savage opponents. Do the names Rove or Libby mean anything to you? And why did the prosecutor, despite taking heavy and continuous heat from the chattering class, keep Judith Miller in jail for three months? Does the Valerie Plame problem go higher than Libby and/or Rowe? Does it go to their bosses, at least to the one who has the word vice in front of his name?

We learn of high ranking Republicans who are incompetent or do not have a clue. Does the name Michael Brown resonate? How about the name Karen Hughes, the ignorant woman from Texas whose views were rebuked by middle eastern women when she told them what they should want? How about Condoleezza Rice -- currently a putative genius because she very articulately presents what passes for conventional wisdom, but who history will, I believe, treat quite differently because of her participation in truly stupid disasters and (almost total?) lack of original ideas.

And please, please tell me it is not true that Harriet Miers said George Bush is the most brilliant man she knows. (Maureen Dowd and Ellen Goodman say that, on his blog, David Frum claims Miers told him this.) The first question a Democratic Senator on the Judiciary Committee should ask Miers is whether she said this. If she did, and admits it, her nomination could be laughed out of court, so to speak, regardless of any admirable qualities she may and in fact seems to possess.

It is interesting that Maureen Dowd, herself obviously a woman, appears to feel that there is something sexual about Bush’s relationship with these three women, Hughes, Rice and Miers -- not sexual in the sense of intimate physical relationships, but in the sense of the women stroking his male ego by telling him how wonderful he is and by constantly doing for him.

The crookedness mentioned above shows that not for nothing has Frank Rich recently written, with regard to the pervasive corruption of our political class: "It’s not just Mr. DeLay, a.k.a the Hammer, who is on life support, but a Washington establishment whose infatuation with power and money has contaminated nearly every limb of government and turned off a public that by two to one finds the country on the wrong track." After further detailing the predations of Republicans, Rich added:

This is the culture that has given us the government we have. It’s a government that has spent more of the taxpayers’ money than any since L.B.J.’s (as calculated by the Cato Institute, a libertarian research institution), even as it rewards its benefactors with tax breaks and corporate pork. It’s a government so used to lying that Mr. DeLay could say with a straight face that the cost of Katrina relief could not be offset by budget cuts because there was no government fat left to cut. It’s the government that fostered the wholesale loss of American lives in both Iraq and on the Gulf Coast by putting cronyism above patriotism.

And, in a development that was surprising, at least to me, Jonathan Alter of Newsweek recently spoke of Tom DeLay, his colleagues, and their corruption in terms so harsh that one does not expect to see it in a national magazine that is not concededly partisan. Alter considers DeLay to be an utter scumbag, and does not think DeLay’s successor, Roy Blunt, is a whole lot better. Alter claims that, despite the rich history of Congressional corruption and scandal, the last ten years are "what historians will regard as the single most corrupt decade in the long and colorful history of the House of Representatives . . . . [T]he leadership of the House been hijacked by a small band of extremists bent on building a ruthless shakedown machine, lining the pockets of their richest constituents and rolling back popular protections for ordinary people. These folks borrow like banana republics and spend like Tip O’Neill on speed . . . . The 21st-century Radical Republic an agenda is to enact the wish list of the tobacco and gun lobbies, repeal health and safety regulations and spend billions on shameless pork-barrel projects to keep the Republicans at the trough."

Meanwhile, of course, the dying in Iraq continues for no ultimate purpose. "You never want to say," says Bob Herbert, "that brave troops died for the mindless fantasies spun by a gang of dissembling, inept politicians. But what else did they die for?" What else indeed.

Combined with corruption we have Busher political cronyism and "rewardism" to a degree that conceivably is unprecedented, with the cronies and "rewardees" sometimes being people already mentioned here, e.g., Michael Brown, Karen Hughes, Abramoff, Condoleeza Rice, Cheney and, possibly, Miers (who, to the contrary however, may be a person of decency and substance -- one does not yet know enough to be able to tell). And let us not forget those two fools who helped foment disaster in Iraq, Paul Bremer and Jay Garner, or the cadre of evil political hangers-on lawyers who helped pave the road to torture-disasters but usually were amply rewarded: John Yoo, Jay Bybee, Jack Goldsmith, Mike Chertoff, Alberto Gonzalez, and Scooter Libby.
* * * * *
What are our chances of getting out of this mess in the next election, in 2006, prior to which, Frank Rich says, "the voters can’t get into the game." Is Rich’s comment meant to imply that there could be change because of 2006? In the current state of affairs, the chances do not strike one as high that change will be brought by the 2006 election when voters can "get into the game."

One can begin with the fact that the criminal torture-conspirator-in-chief is not up for re-election. So he and his banal platitudes will remain with us (absent well deserved but exceedingly unlikely impeachment and conviction for the felony of deliberately violating the anti-torture statute (a conviction which would, however, give us, first, Cheney and then Hastert).) Moreover, because he is President, he will continue to be the cynosure of all eyes; our system has misdeveloped horribly in this regard because of what Andrew Bacevich has correctly called "celebrity worshipping journalists." (Bacevich used this phrase in his Introduction to his new book, The New American Militarism.) In this regard, in an editorializing (but correct) statement in what ostensibly was a news story -- editorializing in alleged news stories has for a few years been de rigeur at The New York Times -- Steven Weisman of that paper explained why Karen Hughes’ platitudes were rejected by Middle Easterners:

She addressed several policies, but in concise sound bites rather than sustained arguments. In American campaigns, such messages repeated over and over can have an effect because a presidential candidate dominates the news with every statement he makes, and if that fails to work, money can be poured into saturation advertising.

The news media is deeply complicit in this sound bitism and this situation regarding advertising: It carries every presidential sound bite -- over and over and over again -- regardless of how inane or platitudinous it may be, it desires and encourages the advertising because it makes a bundle off it, and, just to be certain in pursuing these directions, it generally fails to carry serious stuff that is longer or more complicated than two sound bites when such stuff is written or spoken by serious people who are not celebrities.

(By the way, the news media also has a very advanced case of narcissism. Viz., the recent continuous flap over the incarceration of Judith Miller. She was treated as a hero because -- as she herself later claimed upon her release -- she was protecting sources and without such protection the media will not learn and tell us of many evils, which will consequently go unchallenged and uncorrected. With its customary amnesia for anything that happened more than three days ago (not to mention first principles), the media lionized a woman who used sources -- the Chalabi crowd -- to write baloney about WMDs and other matters and to thereby play an instrumental role in convincing the public and Congress to go along with Bush’s desire to start his vicious war in Iraq. Her use of sources to propagate Busher propaganda and bring on war was so irresponsible that The Times itself has publicly apologized for its reporting. One only wishes the public had known and/or paid cl ose attention to who her sources were and how irresponsible they were -- it is a shame, isn’t it, that some prosecutor didn’t throw her in jail in those days until she ’fessed up about her sources and their personal interests? Maybe we would have been spared the terrible war that this now-lionized reporter did so much to help bring on by irresponsible use of sources -- a fact the media forgets and ignores while praising her stance on secret sources. I say clap her in irons permanently, along with Bush, Cheney and the rest of their warmongering, noncombatant, remain-home-in-safety crowd.)

So 2006 can of course do nothing to rid us of the king of platitudes (who is the smartest man Harriet Miers ever met???). Can it, will it, cause a sea change in the composition of Congress, and, if it were to, would this make a difference? To me the answers likely are no and no.

People in Congress are entrenched -- this is well known. They have used money and privileges -- used them morally corruptly and sometimes legally corruptly -- to create a self-interested professional political class whose members only rarely can be dislodged. All of this is often commented upon. What is less well known and commented on is that the creation of a self-interested, morally corrupt, partisan political class was one of the evils feared by the founders, whom Bushers love to cite yet somehow ignore when, as is so often the case, the founders’ views and their own do not jibe. (The Bushers ignore the founders’ views regarding the creation of a self-interested, corrupt political class, the declaration of war clause, the irreligiousity of leading founders like Jefferson, Madison and Washington, and the role of the Senate in advising and consenting.)

Beyond the entrenchment of the political class, there is also the new solid south -- the now solid (and militaristic) Republican South which has long replaced the former solid south of the Democrats. The Democrats, I would think, should not expect to pick up a whole lot of seats down there.

For these reasons we are most unlikely to see big gains by the Democrats and a consequent change in the composition and control of Congress in 2006. Would such a change make a difference were it to occur? Only within limits, one judges. It is true that, if the Democrats were to gain control of even one house of Congress, it would become more difficult for the Republicans to enact some of the cockamamy domestic legislation desired by Bush and Cheney, especially legislation that rewards their fat cat friends and colleagues while hurting the rest of us. But what would the Democrats do about the war? They have been nothing but tagalongs, politically afraid to come right out and say -- too gutless to come right out and say -- "get out of Iraq now," although the reasons for "staying the course" which we have been hearing for years are nothing but a reprise of the same arguments during Viet Nam. (Things will be worse if we get out, other countries will fall into the wrong orbit, enemies will be emboldened, etc., etc. It’s all the same crapola, fitted into the middle eastern context 35 and 40 years later.)

In his recently published The New American Militarism, Bacevich quotes James Madison for a point that is equally true today:

"Of all the enemies of public liberty, war is perhaps the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies. From these proceed debts and taxes. And armies, debts and taxes are the known instruments for bringing the many under the domination of the few . . . . No nation could preserve its freedom in the midst of continual warfare."

What Madison said -- what moved the framers as Lincoln later elaborated in one of his reasonably well known quotes -- has remained true for hundreds of years and is as true today as 200 years ago. But Democrats pay no attention lest they might lose an election. Electoral victories, and staying in office, mean a lot more to individual Democrats than doing the right thing or saving lives (especially since, as students of the subject have noted, so many Democrats -- unlike lots of Republicans, who have been or are successful in business or the professions -- have no life, no profession, no business, no job, no nuthin outside of politics).

Would a Democratic victory be meaningful for a different subject much in the news lately -- would it be meaningful with regard to appointments to the third branch of government, the judiciary? It’s dubious, since appointments to the Supreme Court are a horse that may be out of the barn for a few years into the future (but maybe not, since several Justices are or are getting up there in years) and since Dubya will still be making the nominations -- a fact equally as relevant to lower court nominations as to Supreme Court ones. The Democrats have shown that they lack the stomach to take on this problem if the Republicans come down hard on them (with the so-called "nuclear option," for example). Nor do they have the intelligence to understand or act on two simple truths.

The first of these truths involves a phrase that Bush, his intellectual cronies and his intellectual predecessors have been taking to the bank for a long, long time: "strict construction." Anybody who knows anything about constitutional law is aware that the phrase "strict construction" is pretty much meaningless. If the cop beats a confession out of someone, is it strict construction of the due process and self incrimination clauses to rule this unlawful because those clauses are otherwise a farce, or is it loose construction because the clauses don’t mention beating the crap out of someone? If people who speak against a war are thrown in jail -- which has happened throughout most of our history -- is it strict construction to rule this lawful despite the freedom of speech clause because that clause says nothing about speech that allegedly could undermine a war effort, or is it loose construction because allowing such punishment of wartime speech that could harm the country’s efforts undermines the purpose of freedom of speech? The basic underlying point here is that whether construction is strict or loose is in the political eye of the beholder -- is, so to speak, a construct based on one’s politics, not a constitutional derivation.

So why don’t the Democrats come right out and attack the use of "strict construction" for being what Bush and company use it as?: for being merely a politically attractive soundbite that is a current stand-in for politically and socially regressive policies. It is a stand-in, a code-word-phrase, as "states’ rights" used to be, for political positions such as limiting free speech, letting the President have wholesale power when it comes to deciding upon war and on how to act in war (vis a vis prisoners, for example), doing away with the right to abortion, cutting back on rights in the criminal procedure process, and doing whatever else the Bushers and their fellow travelers wish to do politically, socially or economically. But the Democrats lack the intelligence or, more likely, the political guts to say this even though it is true.

Then there is also the matter of elitism. The federal courts -- certainly at the Supreme Court and courts of appeal levels -- are an elitist group of people. (Six Justices went to Harvard Law School, while the rest also went to elitist law schools like Yale, Northwestern and Stanford). In this, the courts reflect the elitism that is rampant in the legal profession, especially in the law school world. And the Democrats have bought into this stuff as much as the Republicans. This elitism was recently illustrated paradigmatically by a comment made in an otherwise excellent newspaper article about Harriet Miers written by a famous law school academic of distinctly liberal persuasion who is extremely bright, writes beautifully, and is very accomplished. Commenting on the reasons that Miers should not have been nominated because she assertedly lacks the qualifications to be a Supreme Court Justice, the author, among other and sometimes quite reasonable reasons, said that Miers had gone to a law school "which is not even among the top fifty law schools in the nation." (Emphasis in original.) Imagine that -- a Supreme Court nominee who did not go to one of the law schools which an elitist profession calls elite. Did not go to a law school which the elite would even rank among the top fifty. How awful!!! No doubt the nomination should be withdrawn immediately by Bush and he should apologize for his gall -- and he a Yale and Harvard man, no less.

This kind of rampant elitism, which reserves powerful and prestigious positions for the few anointed of the earth on the claim that only they can be qualified -- only they, for example, can conjure the abstract thoughts, divorced from reality, that got us into and kept us in the Viet Namese and Gulf II wars, abstractisms, for instance, about falling dominoes, the entire Mideast rushing to repair to the standard of democracy, and the disasters to the U.S. of withdrawal from wars -- is one of the things which, I gather, bugs a lot of Republicans (justifiably), and bugs a lot of ordinary people too. Yet, as said, the Democrats -- themselves part and parcel of a morally corrupt elitist system that keeps a relatively small number of people in power forever, have bought into it entirely. So even a Democratic sweep in 2006 -- which, of course, will not happen -- would make little difference in judicial appointments because lots of Democrats will say, as three Democr atic Senators (and The Washington Post) did say of Roberts, and as some are already saying of Miers, that nominees are people of quality, have held responsible positions in law firms or government, and should therefore be confirmed. Translation: The nominees are among the elite of society, so we’ll take them. Prior Democrat claims that they will not accept right wingers will go by the boards -- just wait and see.
* * * * *
In a real way, what we are seeing in politics generally, and in appointments to the courts, is yet another in a historically recurrent series of reprises of what first occurred from about 1760 to 1783, then from 1783 to 1790, then from 1790-1800, then in the Jacksonian period, then in Lincoln’s day, and then again and again as in Theodore Roosevelt’s day, Wilson’s, FDR’s, and LBJ’s. We are seeing a battle between the followers of the likes of Tom Paine and (albeit he was a bit different from Paine) Thomas Jefferson, and the followers of Adams and Hamilton (notwithstanding that those two came to enmity). It all started when, very unusually, average working people -- farmers, mechanics, tradesmen, small businessmen -- began to politically and intellectually take umbrage in the 1760s against what Britain was doing. Lots of their "betters" got involved too, or at least ultimately got involved (John Adams, Jefferson, Washington), but to a major extent our Revolution was one fro m below, and was supported by the view that common people had the brains and temperament to be active in politics. This viewpoint towards common people reached its zenith in the phrases of the Declaration of Independence -- written by their "betters" -- saying that all men are created equal and are endowed with certain inalienable rights. After 1783 the idea that we common slobs could have talents competitive with those of our betters began to come under fire from those who, in Hamiltonian phrases, wanted the government to be the province of the rich, the wise and the well born -- who would, of course, use it to further the commercial interests of their own class, claiming all the while, and sometimes even with much merit, that this was also the way for the country as a whole to leap ahead economically. The dichotomy in views about the worth and ability of the common man was central to the split in the 1790s between the Federalists and the Jeffersonian Republicans, was an im portant driver in the Jacksonian period, was crucial to the thinking of Lincoln -- who saw the Declaration of Independence, with its great phrases of equality and inalienable rights, and not the slavery supporting Constitution -- as our fundamental document, and who therefore said at Gettysburg that we were dedicated to the proposition that all men are created equal and that we were engaged in a battle to save government of, by, and for the people, was central to battles in the late 19th century, to Theodore Roosevelt’s fights and to the New Deal, and so on until our own day.

In our own day, however, we now have two party groups who are willing, and in at least one case are also ready and anxious, to screw over the little man. One is the Bush Republicans with their general corruption, pro big business corruption, and desire to be on the take to selfishly further their own careers and interests. The other are the Democrats, with their elitism -- an elitism which manifests itself in politics, in academe, and wherever Democrat opinion prevails -- and their desire, equal to the Republicans, to be on the take in order to selfishly prolong forever their own careers and presence in office.

The one kind of political group we do not have is any group or party devoted to trying to do what is right for the country and for the little guy, even if this means that members of the group may fall out of electoral favor, and may lose office (if they ever gain it in the first place). Unless and until we develop some sort of cadre of such people, we shall be in big trouble, because the present pervasive moral and legal corruption of our political system insures that we have a semi kakistocracy, a government in the hands of people who are venal, evil, dumb, or all of these. The founders, whom the Bush crowd falsely profess to worship because they have found ways to make this suit their purposes, feared exactly such a development. It is a horrid irony that the Bush crowd, which spuriously professes to worship the founders, are exactly what the founders feared.

It is for all these reasons and more that I say the time has come to emulate the Republicans of ’54 -- 1854. The time has come to start a new political party, one devoted to honesty, competence, considered thought and policy, and the welfare of the common man. One that is Lincolnesque in these regards, and one whose candidates -- no doubt to the laughing scorn of our "sophisticated" media who thinks victory is all -- think it far more important to stand for and do the right things than to win elections or hold office indefinitely. For, somewhat analogously to what I think Theodore Roosevelt may once have said about high office, if one wishes to achieve office and do good things, one has to act as if he or she in a sense does not care about attaining office. (It is not so different from a hitter or a golfer having to remain loose and not tightening up because he cares too much.)

Given the pervasive corruption, legal and moral, of our political class, a new party will likely have to be comprised of us commoners. For only we commoners are not locked into a "system that is fundamentally corrupt," as Bacevich has called it. So be it. If it were to happen, one might say Tom Paine lives -- in yet another time that plainly is trying men’s souls.*