Wednesday, July 30, 2014

Chuck Todd Has (Another) Sad

From time to time, Chuck Todd has a tantrum about politics. Back in 2012, he blew up after former General Electric chairman Jack Welch speculated that the Obama Administration "cooked" the unemployment numbers right before the Presidential election. More recently, he had the nerve to ask the President whether he (Obama) owed the country an apology because was a little glitchy when it was launched (never mind the <crickets> from NBC's Chief White House Correspondent once more than 8 million people used said website to sign up for health insurance).

Now, Chuck Todd has gone on another screed. His target this time is a resolution House Republicans approved that will allow them to sue President Obama which, some have said, is a harbinger of a potential move to impeach him. But don't worry, folks, Chuck Todd is not calling out Republicans for the utter lack of justification for this action. Rather, he finds the politics unsavory and unrealistic. The policy is of no moment to him. In the cloistered world of D.C. politics, optics matter above all else, so Chuck Todd focuses on the infeasibility of impeachment, not the absence of a foundation for it. [1] If Chuck Todd is so offended, he should  use every second of every minute of every hour of the five-day-a-week platform he has as host of The Daily Rundown to mock and shame Republicans who would even raise the specter of impeachment, but no, Chuck Todd is just uncomfortable with appearances. 

Naturally, he also castigates Democrats for having the temerity to raise money off of multiple on-the-record statements by elected Republicans that the President should in fact be impeached. And of course, nowhere in Todd's harangue is the responsibility of the media (of which he is a member in good standing) for coddling the darkest and ugliest impulses of Republicans, who have spent the President's entire term in office maligning him in the most personal, and sometimes racist terms imaginable, because people like Chuck Todd just write this stuff off as politics as usual.

I do not know whether Chuck Todd was being serious or rhetorical when he said "[t]hey're driving people away from the polls, they're driving people away from politics. This is cynical, it's ugly, it's disgusting."  That is true so far as it goes, but his total lack of awareness of the "Beltway" media's culpability in this is axiomatic and obvious to anyone who lives outside Interstate 495. You see the DC media long ago relinquished its responsibility to objectively report the news of the day and instead became, as Jon Stewart observed, the kid in high school who eggs on the fight by saying "you gonna take that shit?" Of course, it is easier for Chuck Todd and his ilk to write off ideas of impeachment, after all, these same suckers took John Boehner at his word when he said a government shutdown was "off the table," and we all know how that one worked out ….

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1. It's worth noting that the five Republicans who did not vote to sue President Obama did so because they didn't think a lawsuit went far enough (i.e., IMPEACH!). 

Sunday, July 20, 2014

Princeton - July 20

Another beautiful day dawned with just the right amount of cloud cover to offer a nice backdrop for a field trip to Princeton University.

When I get to campus, I like going to the gate in front of Nassau Hall. These first two pictures are of the gate and Nassau Hall. 

Next, it was off to East Pyne Hall, where I discovered an amazing courtyard that would not look out of place at Hogwarts School of Witchcraft and Wizardry! One image was taken in black and white, the other with the "sepia" tone feature on my camera. The clouds add a nice backdrop. 

Then, it was off to my new favorite place on campus - Prospect House and the beautiful garden behind it. An array of coneflowers in various colors are still in bloom as are amaryllis, tiger lilies and others. Because this part of campus is somewhat secluded, it's nice and quiet and the scenery is spectacular.

The campus also has a number of sculptures. This one, David Smith's "CUBI XIII" reminded me of the TV show "True Detective." 

Here's an upward looking picture of the back side of Alexander Hall, which was featured on the U.S. Postal Service's 1996 stamp honoring the 250th Anniversary of the school. I used my camera's "vivid color" setting to take this one. 

My next stop was Blair Hall. This is a great building to shoot because of its geometry and the downward slope, which gives the photographer a great angle. For this photo, I used a very fast shutter speed (1/1600) which gave the scene a little added drama.

I then ventured into a part of campus I had not been to before - along University Place, and found Henry Hall and the archway that connects it to Foulke Hall. Both photos were taken using the "vivid color" setting. 

Outside the University Chapel is a statue of a pelican, which, if Wikipedia is to be believed, is a religious symbol. 

On my way back to my car, I took this last shot of the Rothschild Arch, again using a fast shutter speed (1/1600) the gate itself remains deeply in shadow juxtaposed against the blue/white sky. 

I hope you enjoyed this little tour of the campus. If you'd like a high resolution copy of any of these images, email me at - and follow me on Twitter - @scarylawyerguy.

Thursday, July 10, 2014

Book Review - On The Run

Alice Goffman's intimate portrait of life (and living) in the inner city, On The Run, is a fascinating look inside a world within our own that feels a million miles away. Ms. Goffman embedded herself in a not-so-great part of Philadelphia for six years, befriending a group of young men and women, chronicling their exploits, following them through their many run-ins with law enforcement and learning a social code that will make little sense to anyone who has not grown up in poverty. In the Philadelphia Goffman chronicles, police officers are racists who mercilessly beat the young men they arrest, lean on girlfriends and family members to give up their fugitive boyfriends/sons, and wantonly destroy property during raids. The men they are after are no better - poorly educated, rarely employed (and then, for only brief periods of time), father children they can't afford and engage in criminal behavior from the petty (minor drug dealing) to the more severe (gun fights, robberies, and assaults). The criminal justice system is an assembly line, churning out warrants, sentences on plea bargains and moving these fungible young men through the system - probation, incarceration and parole - over and over again. 

The numbing repetitiveness of this cycle has drawn mainstream attention in recent years, through books like Michelle Alexander's The New Jim Crow and a recognition at the federal and state level that mass incarceration, particularly for low-level and/or non-violent crimes, is not only untenable fiscally, but is perpetuating an underclass in our society that is unsustainable. That the new vogue in criminal justice policy focuses on diverting petty drug offenders out of prison and into treatment, prison populations are being reduced in both blood red Texas and deep blue California, and legislative bed fellows Cory Booker and Rand Paul are advocating for even more change, speaks to the pendulum swing that a generation ago focused solely on being "tough on crime" and launching a "war on drugs."

To be sure, drugs animate much of Goffman's narrative. Many of the men in her study deal drugs, largely hand-to-hand to scratch out a living, and accept the consequences that come with being involved in a criminal lifestyle. The collateral consequences to them, the people in their lives, and the community at large ripple out in ways both great and small. Family members are put in the difficult position of deciding whether to condone or reject sons who break the law, toggling between disdain for the police and their own children. Girlfriends and paramours have a code of their own, battling each other for the affection of men who father their children but can't support them, cycle through prison and cheat on them - often in plain view, who they fight with and turn in to the police only to reconcile as a court date or sentencing approaches, or risk arrest by smuggling drugs into prison. 

The community ecosystem is also affected. A black market for everything from bogus IDs to clean urine (lest one give "hot piss" to his parole officer) sprouts up as a side business for otherwise "law abiding" individuals and those with even rudimentary medical skills are sometimes called upon to set a broken arm, extract a wonky tooth or procure antibiotics because the police linger in the emergency room of hospitals trolling for young men who are wanted by the law. The world Goffman describes will appear foreign to many who read her book, but within it is a perversely moral universe that has its own code and lexicon - snitching is wrong, riding (protecting a wanted man from the police) is lauded, and small gestures, like attending a funeral at the risk of arrest, are counted among those in the neighborhood. 

The protagonists Goffman lived among are hardly sympathetic. The men are rarely if ever employed and the women in their lives often bend over backwards to aid and abet their criminal lifestyles. As Goffman notes, one man she met, Steve, did not hold down a job during the six years she knew him, which included periods when he had no active warrants or criminal cases pending. Most of the other men she associated with did not work either and those that did, held jobs for short periods of time, never opening bank accounts or renting apartments or homes. And while Goffman rightly points a finger at the fines, penalties and assessments that accumulate with each court date or conviction and make it almost impossible for someone to say, get their driver's license restored, there is far less drilling down into the responsibility each of these young men has for their actions. 

Goffman is no passive observer to any of this and her active participation in the lives of these families may give the reader pause. Unlike a documentarian maintaining some objective distance from her subjects, Ms. Goffman clearly shows her sympathies toward those she has befriended.  The book is littered with casual mentions of her hanging out with people as they use drugs or discuss criminal activity, which might be written of as the sort of de minimus behavior not uncommon among teens and young adults, however, it is when Goffman's allegiances lean too heavily toward conduct few of us would accept that she erases the line of neutrality. For example, when a twelve year-old boy who threw rocks at his teacher has his day in court, Goffman is there to support the boy, and when the teacher doesn't materialize, Goffman describes the "exciting prospect" that the case will be thrown out. Huh? Since when do we revel in the possibility that a twelve year-old would avoid punishment for throwing rocks at an innocent teacher? 

Most egregious is a story Goffman buries deep in a lengthy afterword ("A Methodological Note"). There, she mentions driving around one of the guys she befriends while he's toting a gun and seeking vengeance for the shooting and murder of one of his friends. Had he gone through with his plan, Ms. Goffman would have been an accessory to a really serious crime and her passing reference to it in a place in the book few are likely to look suggests an utter lack of judgment about what she was doing in the service of her research. While hanging out with people smoking a joint could be written off, volunteering to drive somebody to a shoot out is a bridge too far.

Also missing from On the Run is any discussion of ways that policy makers could impact the lives of these families. While Goffman might brush this criticism off as "outside the scope" of her work, because of her immersion in the neighborhood and with young men and women along a broad age range, she is in a unique position to opine on these topics, but chose not to. While the answers might seem axiomatic (a data point she mentions more than once is that 60% of African-American men who do not graduate high school get arrested before their mid-thirties), there is little probing into how (or why) kids drop out of school, or whether they consider the consequences of having children when they are teens or in their early 20s, or why it is that so many of the young men Goffman meets spend an inordinate amount of energy avoiding responsibility, dodging the law and scamming when that same energy could have been turned toward more prosocial pursuits. And the answer is not entirely environmental. Goffman touches on some "success" stories in her book - of young men who avoided the criminal lifestyle and, while not rich, managed to avoid the many pitfalls their peers seemed incapable (or unwilling) to avoid. In the end, one is left to conclude that Goffman's closeness to her subjects impacted her ability to look at them with a more jaundiced eye. 

On the Run is a valuable piece of reporting, but the solutions that could be advanced by somebody who has this level of granular knowledge about what happens in communities like this is maddeningly out of reach. Ultimately, readers are left to ponder where the balance lies between our responsibility as a society to offer opportunities to those living in poor communities and the personal responsibility that must be taken by those that live there. Left unsaid is the fact that while most of the men Goffman encounters are either dead or in prison by the end of her time in South Philly, they left behind numerous young children who we can only expect will perpetuate this cycle of despair. 

Sunday, July 6, 2014

The Problem With Hobby Lobby

Chief Justice Roberts famously declared during his confirmation hearing for that job that the responsibility of a judge is to simply "call balls and strikes." On first blush, the umpiring analogy is elegant in its simplicity - it offers the patina of what we think of when the word "judge" is used - fairness and impartiality, an objectivity that affirms our belief that justice is blind. But on deeper examination, the Chief Justice's use of this metaphor is both facile and subtle (a rare two-fer). 

The superficiality of his statement is axiomatic. The idea that every judge calls each case the same would obviate the need for appellate courts and never result in a case being decided by a panel of judges in anything other than unanimous fashion. The law would rarely evolve because the view of those judging it would be identical. The subtlety is thus equally apparent. The fact is, not every umpire has the same "strike zone." Some umpires might give an inch on either side of the plate, call a low strike (slightly below the knee) or refuse to call anything at the letters as anything other than a ball. Players know this. Managers know this. Even Major League Baseball knows this, because even in its belated move to implement instant replay, the one thing that is entirely off limits from challenge is the call of the umpire on a pitch. 

But the reason this system works is that even if the strike zone of one umpire differs slightly from that of another, so long as players and managers know that there will be consistency both by that umpire and, more importantly, a general consistency among umpires, that is, the universe of what is and is not a strike, minor exceptions notwithstanding, is known, the integrity of the game is not jeopardized. If umpires suddenly started calling a pitch that bounced in the dirt a foot in front of home plate a strike or a pitch "on the black" four inches above the knee a ball, the game would lose all credibility because the collective understanding of how the game is played, and more importantly, how it is judged, would disappear. 

So what does all of this have to do with the Supreme Court's decision in Hobby Lobby? Everything. The judicial branch of our (federal) government holds a unique place - ever since a little case every first year law student learns about - Marbury v. Madison - we have vested in our courts the right to have the final say on the validity of all laws in our country. That these decisions are made by individuals who are unelected cuts both ways - it shields them from public opprobrium, but has typically been honored by those who have served as a power that requires heightened discretion, lest their decisions be viewed as going against the will of our elected representatives. 

One of the foundational concepts of Supreme Court jurisprudence is the concept of stare decisis - that past precedent should be respected and only, in extreme circumstances, overturned. Indeed, this concept is essentially the "strike zone" of judicial review. The law is generally defined in the same way the strike zone is - and while judges (and justices) may quibble about their respective view of those parameters, but for some really compelling reason (say, finally recognizing that racial discrimination is odious and antithetical to everything we, as Americans, believe in), should be honored. By creating a durable body of law that is not subject to the personal legal views of any particular Justice, the Court's jurisprudence is considered stable - an articulated playing ground upon which everyone can exist. 

But what happens when cases like Hobby Lobby are decided is that the integrity of this delicately balanced ecosystem is called into question - that in exchange for being given the power to have the final say on things, the Court will not rule in a way that is viewed as overtly political - is offended. It is no surprise that the modern nadir for the Court was its 2000 decision in Bush v. Gore. Called to decide not just who would be our next President, but to give all Americans the comfort of knowing that he had been selected fairly, the court instead issued an unsigned opinion that shut down a recount approved by Florida's highest court, explicitly said its own ruling should not be given precedential weight and handed the White House to George W. Bush. In other words, instead of rising to the occasion, the ruling smelled of bald-faced politics. As an unelected institution, no greater sin could have been committed. If the bedrock principle of our nation is the rule of law and that is subverted for what is viewed as a political reason, the whole system breaks down.

While the Hobby Lobby decision is not as egregious as the stain on the rule of law that attended the Bush v. Gore decision, it has the same potential to erode confidence in the impartiality of this hallowed institution. The problem for the Court is not that a contentious case was decided 5-4. It is that the rationale for the majority decision is so outside the court's jurisprudence as to be the equivalent of suddenly calling that ball in the dirt a foot from home plate a strike. Never before have a for-profit corporation's religious rights trumped a governmental interest in applying a law neutrally. And for those thinking perhaps the decision was limited, the Court gave no meaningful explanation as to whether not just closely-held corporations, but public corporations, could argue that a "sincerely held" religious belief could trump a governmental interest if a less restrictive means of achieving that interest was unavailable. As Justice Ginsburg noted in her dissent, all manner of challenges could arise based on this anachronistic interpretation of not just federal law, but the Court's own established precedent. 

This may sound like so much (pardon the pun) inside baseball that becomes grist for years of law review articles, but this shit actually matters, because once you've crossed a particular jurisprudential rubicon the consequences could be massive. The Supreme Court has now placed courts in the position of judging whether sincerely held religious beliefs will trump federal law if not properly accommodated. And this is not abstract - Muslim prisoners held at Guantanamo Bay are filing suit, citing Hobby Lobby, to permit communal prayers during Ramadan; and, as Justice Ginsburg noted, the Court's ruling opens the door for other faiths to challenge laws that impact everything from blood transfusions to immunizations, and this does not even get to what would happen if a public corporation made a similar challenge. Of course, the Supreme Court has the luxury of granting certiorari to less than 100 cases a year while rejecting thousands more, thus risking the type of piecemeal judicial interpretation throughout the twelve federal circuits that could have been avoided if the Court had stuck to its long-standing principles regarding the neutral application of laws that impact religious beliefs.