Wednesday, September 30, 2020

Things I have to learn again and again

 Certain lessons I have to learn again and again. 


In 1994 went to a Project Adventure training in Michigan for Adventure-Based Counseling. One challenge was to get our entire group to cross a space on a rope swing without touching the ground and then all stand together on a small wooden platform, and to do this in thirty minutes. The obstacle, for our group, was getting people up on that rope swing. There were members who could not get their foot up to the knot, or who could not then lift themselves to stand on it. I got down on my hands and knees and told them to use me as an intermediate step. They were fearful that they were too heavy, or that my forty-two year old body was just too weak to support another person. Anyway, I insisted and we got about two-thirds of the group across before someone’s foot touched the ground and we had to start from the beginning.


Judging by how long it had taken us so far, there was clearly not enough time left to succeed. The group decided we should use the remaining minutes for the people who had not crossed yet to try the rope swing. They were most insistent that I get the opportunity. Could I tell them that swinging across twelve or fifteen feet would not afford me the rapture they thought it would? No, I could not. It had been a daunting obstacle for many of them and therefore a great achievement. I wasn’t going to minimize or disparage their accomplishment. I grabbed the rope and I swung across.


Astonishment. Epiphany. Several people simultaneously realized that if I could do this with such ease then we could approach the problem differently, sending me and a twenty-something guy back and forth to assist everyone. And we did. And we got the entire group across in the seven-or-so minutes we had left. Success.


But the revelation for me was that turning myself into a stoop wasn’t the only option I had in order to serve others. I could do this in ways that required less self-abasement. But self-abasement in service of others is a habit of thought as well as a habit of heart. I have had to learn that lesson over and over. And it has come as a revelation every time.


I have had to unlearn other, related, habits of abnegation, too. When I was seventeen I got home one evening after a long drive back from Toronto. I was surprised to find a large group of classmates crowded into my parents’ living room. They had been meeting to discuss next steps in the endless struggle to get our high school to treat us a human beings with opinions and preferences and - dare I say the word? - rights. They had decided that we should run a candidate for school board to speak for us during the upcoming elections. And they had voted on who should be that candidate. And their vote was completely split, a tie between P. and me. And they wanted me to break the tie.


It was an easy choice for me. It required no thought at all. Under what circumstances would I even consider voting for myself? The belief that one does not advance oneself - that one only accepts a trust like that when others choose it for you - was so deeply ingrained in me that I don’t think I was aware that it wasn’t universally held. Before I could vote, though, some of my supporters pulled me aside. They said that they preferred me and that they didn’t appreciate what they expected to be my rejection of their preference. And they pointed out that while I had not yet voted, P. had. They noted that P. voted for himself, that if our votes were cancelled I would have won. And they asked me to drop this stupid principle and support the majority. With some discomfort, I did. I did not regret that decision.


Forty years later I went to the superintendent of Bronx schools and announced that I was ready for a principalship. It was still hard. The little boy in me still held to the view that she should have been approaching me instead of the other way around, that I was being presumptuous and personally ambitious instead of acting to serve the greater good. But decades of experience and reflection made it a little easier. That August she offered me a brand-new school that suddenly needed a principal and I accepted that challenge and that trust. It was insanely hard. But I have never regretted that decision, either.


The brighter the flash of understanding, the more profound the depth of the insight, the more likely I will have to repeat it again tomorrow. In fact, my greatest bursts of sudden self-knowledge were the ones I suddenly couldn’t remember moments later. Our habits of mind and heart are written into us by early and repeated experience and by the words and deeds of our loved ones. We have guarded them relentlessly and looked away from them with great care. In fact, that habit of avoiding actual reflection and self-examination (as opposed to self-contempt or rehearsing our hurts) is probably our most ingrained habit. 


I try. 


But I know I will have to try again tomorrow.

Tuesday, September 29, 2020

Some Thoughts on the Confirmation Hearings of Judge Amy Coney Barrett

 


In 1969 a Democratic Senate rejected Richard Nixon’s nomination of Clement Haynsworth to the Supreme Court to replace Justice Abe Fortas. It was the first time the Senate had done this in about forty years. The rejection may have been because of some pro-segregation decisions he made while on the Circuit bench. Haynsworth was opposed by many Republicans, too, as well as the NAACP. But some Democrats were still angry about the Republicans’ rejection of Fortas as Chief Justice late in LBJ’s term, and his subsequent forced resignation, which gave Nixon one more seat to fill after making Warren Burger the Chief Justice.


Nixon responded to the Senate’s rejection of Haynsworth by nominating G. Harrold Carswell, a Federal District judge who had recent been approved by the Senate as a Circuit judge. The attention of a Supreme Court nomination brought more scrutiny, revealing Carswell’s vocal support of racism, including a speech in which he said that he would “yield to no man” in his “firm, vigorous belief in the principles of white supremacy.”

 

The debate over his confirmation also featured the claim that - racist or not - Carswell was a mediocre judge. Nebraska Republican Roman Hruska offered a curious defense: Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters, and Cardozos.


When the Senate rejected Carswell, too, Nixon nominated Minnesota conservative Harry Blackmun. Blackmun had been put on the Eighth Circuit Court of Appeals by Dwight Eisenhower and was a close personal friend of Chief Justice Burger. The Senate approved his nomination unanimously.


In the summer of 1971, Justices Hugo Black and John Harlan both fell ill, retired, and died soon after. In those days people didn’t automatically think of Justices by their party affiliations. For us today, though, I will mention that Black was appointed by FDR and Harlan by Eisenhower.


Nixon’s list of possible candidates surprised people for their lack of distinction. He withdrew his actual first two candidates when the American Bar Association said they were unqualified. He then nominated Lewis Powell and William Rehnquist for the two seats. Powell was approved with a single dissenting vote. Twenty-six Senators voted agains Rehnquist: twenty-three Democrats and three Republicans.

It is worth noting that this was a Democratic-controlled Senate, with fifty-four Democrats and forty-four Republicans. Despite the contention surrounding the Haynsworth and Carswell nominations the Senate retained the understanding that Presidents chose Justices. 

A couple of facts about Rehnquist are also worth noting. First, during the Court’s deliberation over Brown v. Board of Education in 1954, Rehnquist was a clerk to Justice Robert Jackson. He argued vociferously in favor of segregation. He also wrote a memo for Jackson in favor of upholding Plessy v. Ferguson. Second, Rehnquist led a vigorous and well-financed operation to suppress the votes of Mexican-Americans in Arizona through the 1960’s.


Supreme Court nominations were less contentious for the next fifteen years. Gerald Ford’s appointment of John Paul Stevens was confirmed by a majority-Democratic Senate unanimously. Ronald Reagan’s nominations of Sandra Day O’Connor and Antonin Scalia were unanimously confirmed by majority-Republican Senates. William Rehnquist was confirmed by a vote of 65-33. All these votes mean that both parties went along with the President’s choice.


The exception was Robert Bork. Reagan nominated Bork in 1987 and the choice was more than controversial, for reasons of judicial philosophy and because of his personal history. Twenty-three years after the Brown decision Bork still argued that it was wrong and should be reversed. Bork invented the idea of “originalism” to justify a defense of a reactionary reading of the Constitution as meaning only what the people who wrote it meant. This has justified decisions against women’s rights and against racial equality.

 

Bork also played a major role in the Watergate affair. In 1973, Nixon ordered his Attorney General, Elliot Richardson, to fire Special Prosecutor Archibald Cox for requesting the Oval Office tapes. Richardson resigned rather than carry out the order. His deputy, William Ruckelshaus, also resigned instead of firing the special prosecutor. But Solicitor General Bork went ahead and fired Cox as soon as those resignations made him Acting Attorney General. Nixon promised him the next open seat on the Supreme Court as a reward, but as we know, Nixon resigned a year later before an opening appeared.


Two more Republican nominations aroused little Democratic objection. After the Senate rejected Bork, Reagan nominated Anthony Kennedy and he was confirmed unanimously. George Bush nominated David Souter and - after some questions about a less-than-notable judicial career - he was confirmed by the majority-Democratic Senate.


Then… Clarence Thomas. When Justice Thurgood Marshall retired, President Bush nominated this forty-three-year old who had been a judge for a minute and whose principal qualification appeared to be that he was Black and a conservative Republican. In those days, Presidents still asked for an evaluation of their Court nominees by the American Bar Association. In Marshall’s case the White House asked publicly, but then privately pressured the ABA for a positive assessment. He received a minimally acceptable rating.


In the Senate Judiciary Committee hearings, Judge Thomas was, let’s say, reticent. His years on the Court since then have demonstrated that he is that way every day. He is known for rarely speaking from the bench. Much of the concern about him stemmed from the fact that he was a relatively young and undistinguished Black beneficiary of affirmative action who nevertheless opposed affirmative action but was nominated to succeed a distinguished Civil Rights veteran, Thurgood Marshal. Once his nomination went to the full Senate, somebody leaked the FBI report about him from Anita Hill, his subordinate at both the Department of Education. This changed the discussion from judicial philosophy to sexual harassment.


This was thirty years ago. It may be difficult to imagine, but at the time it seemed that most of the Senate didn’t believe there was such a thing as sexual harassment. One Senator was incredulous that a female protege would meet and dine with a harassing mentor after he was no longer her forma supervisor. In any case, the entire affair was contentious and Professor Hill’s testimony was carried live on television. The vote was close: 41 Republicans and 11 Democrats in favor; 46 Democrats and 2 Republicans opposed. A very little arithmetic will tell you that, despite Thomas’s complaint that he was the victim of a high-tech lynching (yes, that was his word) he was approved by a majority-Democratic Senate. He is currently our longest-serving Justice and he is only 72.


During Bill Clinton’s Presidency he had the opportunity to replace Justices Byron White and Harry Blackmun. He appointed Ruth Bader Ginsburg and Stephen Breyer. They were accepted by large, mostly non-party votes.


Perhaps the two parties had built up a reservoir of testiness with each other by the 21st century. When William Rehnquist retired in 2005, President George W. Bush withdrew John Roberts’s nomination to replace Justice O’Connor and nominated Roberts instead to be Chief Justice. He was grilled about his judicial philosophy, but in the end half of the Senate Democrats voted to approve him anyway. Bush nominated Samuel Alito for the Associate Justice seat. He received a grilling and was only supported by four Democrats in a largely party-line vote.


Barack Obama’s nominees also received partisan treatment. Judge Sonia Sotomayor had been put on the federal District Court by George Bush and on the Circuit Court of Appeals by Bill Clinton. Even in those hearings there seemed to be concern about her gender, her ethnicity, and her support of gay rights. During her confirmation hearings for the Supreme Court, her opponents kept yelling about a comment she made in a speech about the ability of a “wise Latina woman” to understand some things that a white man might not. She was forced to clarify that remark, although I thought it was quite clear and definitely true. House Speaker Newt Gingrich astonishingly called her a racist! Sixty-eight Democrats voted for her. They were joined by only nine Republicans. Some observers said that Republican hostility was a result of residual anger over Bork’s rejection. I’ll just remind you that twenty-two years had passed and seven other Justices approved in that time.


Then there was Elena Kagan. Liberals were concerned about her reputation as a moderate and she was actually endorsed by conservative Justice Samuel Alito. That didn’t stop the Republicans from grilling her and mostly voting against her.

I think that the Merrick Garland affair is still fresh in everyone’s memory. I think Mitch McConnell’s refusal to even entertain President Obama’s nomination of another judicial moderate is being discussed enough right now that I don’t have to explain it. I think it is sufficient to account for the contentious partisan receptions that Neil Gorsuch and Brett Kavanaugh received in their confirmation hearings and in the votes to approve them. I certainly think it explains the intense hostility to Trump’s nomination of Amy Coney Barrett and Mitch McConnell’s insistence on a confirmation vote little more than a month before the election.


But there are some other observations that must be made.


First, I am old enough to remember when Justices weren’t identified by political party, as if their decisions were completely invalid if their party affiliations didn’t align with yours. I think that party label became a regular thing when the Court decided the 2000 Presidential election. I think it grew stronger when the Court declared money to be speech in 2010 and when it gutted the Voting Rights Act in 2012. There can be no doubt that this undermines the authority of the Judicial Branch.


Second, Republicans have grown dissatisfied with Republican affiliation as a qualification for judges they choose. It is a notorious fact that Republican Presidents have appointed Justices who were later denounced as “liberals” by self-styled judicial conservatives. (And I say they style themselves conservative because they are as activist as anybody in reversing precedent and overturning legislation, just precedents and laws that they don’t like.) Consider the Court’s still-controversial decision in Roe v. Wade, which eliminated the ability of the states to outlaw abortion. The vote in that case was 7-2. Only two of the seven Justices in favor had been appointed by Democratic Presidents. The other five, who would have made a majority all by themselves, were all Nixon and Eisenhower appointees. The two opposed? One Democrat, one Republican.


Justice O’Connor was a Goldwater Republican, appointed to the Court by Ronald Reagan. Conservatives complained endlessly about her supposed liberalism, apparently because she didn’t immediately overturn Roe v. Wade. She opposed affirmative action and denied the role of race in death penalty cases. But she also opposed intrusive searches and school prayer, so she was an enemy.


Then there was Justice Anthony Kennedy, also a Reagan appointee. He voted with Chief Justice Rehnquist as much as any other Justice. He opposed gun control and supported dark money in elections. But he, too, supported Roe and he joined the majority in defense of gay marriage, so… another enemy.


And remember Harry Blackmun? The Justice appointed by Nixon after his nominations of Clement Haynsworth and Harold Carswell failed. He may be the most interesting case. He was a conservative Republican who Republicans demonized as one of the most liberal Justices on the Court by the time he retired in 1994. He wrote the Roe v. Wade decision. He wrote a memorable dissent, again on privacy grounds, when the Court upheld a Georgia law criminalizing oral sex, a law, incidentally, that was only enforced against gay people.

Which brings me to my final point. How is it that “conservatives” have grown so hostile to their own appointees? Does sitting on the Supreme Court bench eventually turn conservative judges into liberals? Has the midpoint between liberal and conservative moved dramatically to the right over the last seven decades? One way to think about this is to look at the cases that have been most contentious.

 

Consider Roe v Wade. Our present-day conservatives like to talk about “originalism”, by which they claim to mean the intentions of the men who wrote the Constitution. I’m prepared to accept the argument that both Madison and Hamilton would have allowed the states to outlaw abortion, maybe. But I have to ask: If that were true, would it have been because they were opposed to people’s privacy and control of their bodies? Or would it have been because they were men who believed in the subordination of women?


Our present-day conservatives were outraged about decisions legalizing homosexuality. Is that really because they think the Court shouldn’t be stepping into this? Or is it really because they don’t believe in the First Amendment with its ban on establishing their restrictive sexual view as the national religion? Is it really because they just don’t believe in a right of privacy?


In Shelby County v Holder, the Court’s “conservative” majority gutted the Voting Rights Act, leading to an immediate wave of voter suppression laws. Did our conservatives care about safeguarding the rights of states to make their own voting laws? Or were they more concerned with undermining the Fourteenth Amendment, which was intended to protect the rights of all citizens?


I may as well cite Citizens United v FEC, too. The Court’s conservative majority overturned the Bipartisan Campaign Reform Act of 2002. They said that limiting the amount of money corporations and lobbies could spend on campaign propaganda was an infringement on free speech! Which begs the question: Did they really care about the First Amendment? Or did they simply want to protect attempts by the richest Americans to buy elections.

So what does the word “conservative” even mean? These examples all show that the “judicial conservatives” are activists in overturning legislation they don’t like and in ignoring the Constitution when it suits them. What are they “conserving” then? I think the answer has already been made clear:

 

Shelby v Holder conserves white supremacy by allowing the states to suppress votes.


Citizens United conserves the oligarchy of the wealthy by allowing them to buy elections.


Every decision weakening Roe v Wade conserves patriarchy by denying women control over their bodies.


Each “freedom of religion” decision that justifies discrimination conserves bigotry, whether against gay people or against other religions.


If we say that the US is an oligarchy of wealthy, white, heterosexual, Christian men then protecting that oligarchy is, indeed, conservatism. But our conservatives angrily deny all that. In fact, they say that any such claim is unpatriotic and evidence that the speaker hates America. They say America is a land of freedom and equality. All of which shows that their judicial philosophy is not conservative at all. It is radical, it is activist, it is white supremacist, it is male supremacist, it is heterosexist, and - most fundamentally - it supports an oligarchy of the richest.

 

Saturday, September 19, 2020

More Big Ten Football: Sports Teams with a College as a Side Hustle?

 Yes, I am stuck on Big Ten football, despite all the other horrors of the last 24 hours.

Early in the COVID-19 crisis, in March the Ivies started kicking students off campus, followed by other colleges. Both students and faculty began asking questions about the financial hardships that arose to support staff and students alike. Administrators replied that this was affecting everybody, "we all have to make sacrifices," and there was just no way around it. But faculty and students asked, "What about the endowment?"

Administrators reacted as though they were being asked to throw themselves on a fiery pyre as human sacrifices. Apparently the word "endowment" is taboo out of any context except increasing it. When they did answer the question it was to (horrifiedly) remind everybody that the endowment is for an emergency. We were all supposed to understand that a global viral pandemic did not - in fact - qualify as an emergency.

Harvard is often mentioned in this context because it owns the largest endowment, $39 billion. (With a B!) That comes to $1.5 million per student. If I calculate a 5% annual rate of return on investment, which I think is conservative, the university could spend $75,000 per year on each student without shrinking that endowment. They could accept whomever they chose, and - given the brand-value of a Harvard diploma - count on a growing endowment anyway from alumni gifts. Not to mention the large gifts people come up with to put their name on, say, a new microbiology building.

And while Harvard has the largest endowment of any American school it is by no means the largest per student. That would be Princeton, with $2.9 million per student, or approximately double. They could offer free tuition, room and board, and a new BMW 5-Series every year to every student. Just saying.

What about the schools of the Big Ten. Well, they are bigger schools with smaller endowments. Indiana University, for example, is poverty-stricken relative to the Ivies. It's endowment is "only" $2.4 billion. That is a measly $60,000 per student. At my 5% growth rate, that is $3000 per student per year. But for in-state students, who pay $26,000 a year for tuition, room, and board, that's not nothing.

It has been suggested that the elite colleges are actually hedge funds who operate schools as a side hustle. The numbers bear that out. Harvard's total FY 2019 operating expenses were only  12% the size of their endowment. And they were disappointed with the 6.5% return they earned on that endowment. I would say that the absolute refusal to dip into endowments in the face of the COVID-19 emergency makes the same point.

What about the Big Ten? Let's look at events. The conference announced a ten-game conference-only schedule in early August. Less than a week later they canceled football for the fall. There were lots of complaints but the biggest ones came from Nebraska. The coach threatened to play in some other conference. A group of Nebraska players sued. The attorney general of the state threatened a lawsuit. This week the Big Ten announced that it was back. 

 What's up with Nebraska? Their endowment is a mere $1.435 billion or $25,820 per student (less than $3000 per year at 5%) Their operating expenses are the same order of magnitude at $1.27 billion a year. Breaking down those expenses is a challenge. But one comparison stands out for me. University President Ronnie D. Green's annual salary is under $500,000, including housing, travel, and vehicle allowances. Football Coach Scott Frost earns $5 million a year. That's right, the football coach is paid ten times what the university president - his nominal boss - is paid. Perhaps you're wondering what the fans get for that. I'll save you the trouble of looking it up. In Frost's two years as head coach the team's record is 9-15.

This suggests to me that the University of Nebraska is an athletic department (or perhaps just a football team) with a college as a side hustle. That would account for the level of frenzy regarding the Big Ten's postponement. That would account for a coach who is paid ten times the salary of the university president.

But would I call it a professional sports team with a college attached? Only with a big asterisk. Because while they're paying Scott Frost $5 million, their tight end Thomas Fidone, who will almost certainly be drafted by an NFL team, is being paid zero. Highly-regarded strong-side defensive end Tiaoalii Savea is also a probable for the NFL draft, and is also being paid zero. 

By contrast, Cincinnati Bengals defensive end Andrew Brown makes $540,000. The Bengals' head coach, former Nebraska quarterback Zac Taylor's salary is not publicly disclosed, but it is estimated to be about the same as Andrew Brown's (and U. of Nebraska President Ronnie Green's.) I will also note that a top defensive end, like the Bengals' Carlos Dunlap makes $13 million a year.

Friday, September 18, 2020

The Heralded Return of Big Ten Football

 The total number of COVID-19 deaths in the United States is over 197,000 this morning, but sports news is heralding the return of Big 10 football. I have so many questions:

How many schools are there in the Big 10 conference? There are 14.


How many COVID-19 cases are there in the Big 10 schools. The NY Times reports 8533 this morning.


How often will Big 10 football players be tested for COVID-19? Daily.


How many players does that include? NCAA rules allow teams to carry 125 on a roster, so up to 1750.


So 1750 COVID-19 tests? No, 1750 tests a day, beginning September 30, with a season extending to late December. Figure roughly 150,000.


Are any of the Big Ten schools coronavirus hotspots? Ohio State has over 1500 cases, Iowa over 1600, Illinois over 1700. Wisconsin has 1000 but more than 40 of those are football payers and coaches.


Are other students at those schools receiving this level of testing? No.


Are these universities the worst coronavirus hotspots in Big Ten states? Absolutely not. Prisons, nursing homes, and food processing plants are worse everywhere. Consider the University of Iowa. Those 1600 documented cases at the university are concerning, but they represent 5% of the student body. By contrast, consider Tyson Foods, also in Iowa. There were 591 cases among 2500 workers at the Tyson Foods plant in Storm Lake, Iowa (23%), 1031 cases among 2800 workers at their Waterloo, Iowa plant (37%), and 730 cases among 1200 workers at their Perry, Iowa plant (61%).


Are meatpacking workers receiving daily testing? No.


What about protective equipment? The President issued an executive order declaring those workers to be essential and exempting their employers from any requirement to upgrade health and safety protections.


Do the employers provide meatpacking workers with personal protective equipment? Yes, one N95 mask a day. Usually the mask is completely soaked in blood after two hours of work.


How is this different than the professional sports leagues? The most important difference is that NCAA athletes receive no compensation. The school gets paid, the ADs and coaches get paid, the TV broadcasters get paid, the video game companies get paid, the jersey merchants get paid… everybody gets paid but the athletes.

Thursday, September 17, 2020

Dred Scott 2020

 Punitive drug laws permit the mass incarceration of Black, Brown, and Indigenous Americans. Drug use itself, nevertheless, continues unabated.


Restrictive immigration laws permit the abuse, caging, and torture of newcomers. US industries themselves, nevertheless, continue to hire millions of workers without documents.


Is there a connection between these apparently unrelated puzzles? Why, yes, there is:


  • Criminalizing all these people creates two immense classes of workers who can be underpaid and abused with impunity.
  • Criminalizing all these people creates two immense classes of Americans who are barred from voting to end their own exploitation.


White supremacy is both a business model and a governing plan for racial capitalism.




A Louisiana corrections officer oversees incarcerated men working the fields at Angola State Farm.

Not 1815. 

Not 1915. 

2015.

Monday, September 14, 2020

Putrid

 There are two meanings for the word “corrupt.” It can refer to giving or taking bribes. It can also refer to putrid, spoiled meat. You see how they overlap?


In our legal system, though, it requires a specific statute to define something as corrupt, so that leaves it to a capitalist order to decide what really goes too far.


Two weeks ago, for example, a North Carolina cancer patient worried about how she would get health care after losing her job due to the COVID-19 recession. She phoned the office of Senator Thom Tillis for assistance. An aide told her that she couldn’t have health care if she couldn’t afford it. He compared her need for life-saving medical care to a dress shirt that he saw in a store but was too expensive for him! Corrupt? Not according to the law.


This morning CNN correspondent Fareed Zakaria worried aloud on NPR that any COVID-19 vaccine would probably be distributed based on who has the money for it rather than where it would do the most good. He referred to a “fiasco” surrounding COVID testing in March and April when testing was available to people with the most money or connections rather than to hospital workers who were actually coming into daily contact with COVID patients they were treating. Corrupt? Not according to the law.


We saw people with summer homes dashing off to them. They left their poorer neighbors confined to their apartments and they brought their infections to areas less prepared to deal with them. Oh, and they proudly posted photos of their quarantine on Instagram. Corrupt? Not according to the law.


Monopolizing health and safety may not yet be illegal in the United States. But it is corrupt in the other sense. It is spoiled behavior, it is putrid behavior, and it stinks to heaven. It is past time to recognize health care as a social necessity. Medicare For All.