Month: April 2011

Recently Slate ran a commentary on Connick v. Thompson, declaring, "Clarence Thomas writes one of the meanest Supreme Court decisions ever." They detail at length the penchant of the Scalia-Thomas dyad for being cruel simply because they can be – or more accurately, because they feel justified that their "originalist" interpretation makes them unbiased arbiters of the law. Slate notes that Thomas and Scalia bend over backwards to excuse the actions of the state even though lower courts and the prosecutors themselves have admitted that egregious errors were made. While it is understandable to focus on the human costs of this decision, Slate overlooks a much more important fact: they're wrong.
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In writing this decision they completely ignored 30 years of precedent in favor of "legislating from the bench" and "judicial activism" and all the other buzzwords that, curiously enough, I did not hear any conservative Champions of the Individual Against Encroaching Powers of the State apply to the justices' actions in this case.

First, some background.

The defendant, Robert Thompson:

…was sentenced to death and spent 18 years in prison—14 of them isolated on death row—and watched as seven executions were planned for him. Several weeks before an execution scheduled for May 1999, Thompson's private investigators learned that prosecutors had failed to turn over evidence that would have cleared him at his robbery trial. This evidence included the fact that the main informant against him had received a reward from the victim's family, that the eyewitness identification done at the time described someone who looked nothing like him, and that a blood sample taken from the crime scene did not match Thompson's blood type.

Exculpatory evidence is called Brady material in reference to Brady v. Maryland, which holds that the state violates the constitutional rights of a defendant if it does not reveal evidence in its possession that might suggest the defendant's innocence. So if a prosecutor withholds Brady material it is in essence willingly prosecuting someone it knows, or has a valid reason to suspect, is innocent. In Mr. Thompson's case this involved collaboration among at least five prosecutors in New Orleans (despite Thomas' errant claim that the case is about "whether a municipality is liable for a single Brady violation by one of its prosecutors") and very nearly resulted in the application of the death penalty. No big deal, right?

A jury awarded Thompson $14 million in damages (one for each year he spent incarcerated) which was affirmed on appeal. At least it was until the Supreme Court came riding to the rescue of the crooked prosecutors. Scalia lays blame at the feet of a single "miscreant prosecutor" – just a bad apple!
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Where have we heard this argument before? – despite the fact that suppressing this evidence involved collaboration over twenty years and dozens of opportunities for the New Orleans prosecutor's office to introduce the evidence. Amazingly:

One of the reasons the truth came to light after 20 years is that Gerry Deegan, a junior assistant D.A. on the Thompson case, confessed as he lay dying of cancer that he had withheld the crime lab test results and removed a blood sample from the evidence room. The prosecutor to whom Deegan confessed said nothing about this for five years.

What's a deathbed confession among pals?

Here's the kicker. Thompson's suit was named the head of the prosecutor's office, District Attorney Harry Connick Sr. (yes, father of…). Connick did not prosecute the case personally. He was named in the suit because Thompson's attorneys allege that he failed to train his staff – that will be key in a minute – and that his office established a pattern of Brady violations under his command (which Ginsburg details in her dissent). OK? OK.

The Supreme Court established absolute prosecutorial immunity in Imbler v. Pachtman (1976) and Thomas/Scalia rely upon its precedent in their decisions. Unfortunately they overlooked a number of cases that subsequently defined the limits of immunity under Imbler. In Burns v. Reed (1991) the Court noted that Imbler affords absolute immunity for a prosecutor's conduct in "initiating a prosecution and in presenting the State's case" insofar as that conduct is "intimately associated with the judicial phase of the criminal process." The burden rests with the State to prove that any actions for which it claims immunity meet the standard (see Forrester v. White, 1988).

More recently in Mink (2007) 482 F.3d 1244 from the 10th Circuit, U.S. Court of Appeals, the Court ruled that absolute immunity does not extend to "those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate (for the State)." In other words, the plain text of Imbler and Burns state that immunity covers actions "intimately associated with the judicial phase of the criminal process" and immunity explicitly does not extend to "administrative" functions such as supervising one's subordinates and training them on proper conduct and legal procedures.

In short, there's nary a word in Imbler, Burns, Mink, or any of the predecessor cases involving prosecutorial immunity about holding a unit of government blameless when its prosecutor runs an office in which people who will represent the state in criminal trials are either encouraged or allowed by neglect and lack of training/supervision to disregard the rights of defendants. Thomas and Scalia just made it up. It's all well and good that the Justices adhere to what they believe is a very literal interpretation of the law; if only they could apply that same rigor to their interpretation of the facts of the cases before them.
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Instead they held the law constant and twisted the facts of until they matched the description of of what is protected by immunity under Imbler and other cases. By reinventing the history of Thompson's ordeal as a single act by a single Bad Apple they were able to give a crooked prosecutor in a crooked city a free pass, in keeping with the long tradition of "originalists" giving aid and comfort to the powerful.

Activist Judging: It's Not So Bad Sometimes!^tm

The culture industry – Hollywood, New York publishing giants, the internet – long ago figured out that being inoffensive is a very effective way to make money. Yes, some bands make record companies a lot of money by being loud and jarring, but their bread and butter is the muzak / mainstream "adult contemporary" stuff – James Taylor, Celine Dion, Air Supply, Eric Clapton, and so on. Some Hollywood movies are cutting edge, but the most reliable moneymakers are mainstream genre films (romantic comedies, crime dramas, etc.) with dull, bankable stars despite the fact that you will forget about these movies five minutes after they end. The collected work of David Foster Wallace didn't produce the profit of just one of the Danielle Steele novels churned out every few months for the last 20 years.

It is patently clear at this point that President Obama believes in the political equivalent of this kind of product and has oriented his presidency toward the soft, mushy, forgettable middle. It's as if he's trying to be mediocre; if he is, Mission Accomplished. In the rush to declare victory after the budget deal that averted a government shutdown, the President had this to say late Friday evening:

Tomorrow, I’m pleased to announce that the Washington Monument, as well as the entire federal government, will be open for business. And that's because today Americans of different beliefs came together again.

In the final hours before our government would have been forced to shut down, leaders in both parties reached an agreement that will allow our small businesses to get the loans they need, our families to get the mortgages they applied for, and hundreds of thousands of Americans to show up at work and take home their paychecks on time, including our brave men and women in uniform.

This agreement between Democrats and Republicans, on behalf of all Americans, is on a budget that invests in our future while making the largest annual spending cut in our history. Like any worthwhile compromise, both sides had to make tough decisions and give ground on issues that were important to them. And I certainly did that.

Is there a market for this? I mean, is there anyone out there who gets excited about how bipartisany and compromisey Obama can be? Who's happy with this "deal"? Republicans certainly aren't going to pat him on the back, as they see the budget cuts as far too small.

Democrats wonder why Obama is validating Tea Party rhetoric and treating their talking points about the wisdom of austerity as a starting point for negotiations. "Independents" are probably just confused about why they should care about deep cuts in things they like in order to chop a tiny amount of cash off the deficit.

Who in the hell celebrates this as a victory?

As I like to remind everyone, Obama sees compromise as an end, not a means…

as if people are thrilled by compromise itself irrespective of whether problems get solved. We are supposed to overlook the fact that caving to the austerity movement is a terrible idea from the liberal perspective and that spending cuts are far too small from the conservative point of view.

There may be an audience for Air Supply and Sandra Bullock movies, but in politics the middle of the road is usually populated with roadkill. If the President expects people to rise up in celebration of mediocre policy outcomes and problems that never seem to get any better, he is going to be sorely disappointed. At this point it will be more a matter of fortune than strategy if he gets re-elected, which is a polite way of saying that the weakness (and borderline insanity) of the GOP field is more likely to save him than his heroic ability to give John Boehner what he wants in order to bolster his compromise count.

In my final years in Chicago I worked in an office in Greektown, roughly at Halsted and Jackson. A number of businesses in the area were notable for not having…well, customers. Or certainly not enough of them to stay in business. It was quite obvious even to the most naive observer that a number of storefronts in the neighborhood were fronts for Chicago's rather active Greek organized crime groups.

One day a coworker and I decided to relax after a long day by retiring to a nearby bar to watch the Bulls.
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We entered this ostensible drinking establishment and noted that there were A) no customers and, more unusually, B) no bartender. There was a dusty TV tuned not to local sports but to some baffling Greek soap opera. After a few minutes a gentleman emerged from a back room to inform us that they were unable to serve drinks because they had not received a delivery that day. It was the most ridiculous excuse I have ever heard before or since – and remember, I teach 18 year olds for a living. What do you mean, I asked, gesturing toward the clearly stocked bar. He drolly repeated "No drinks. No delivery today." in a tone that unmistakably indicated that he did not give a shit whether or not I believed him.

He locked the door behind us when we left.

This is why organized crime is so often described as "brazen" among journalists. They operate in the open and under the flimsiest of excuses because they know that everyone knows what they're doing but they simply do not care because what are you gonna do about it, huh? When your organization is so large and so powerful that you can insulate yourselves from the consequences of illegal behavior, why bother to hide it? Which is exactly the attitude we have seen and continue to see from the Scott Walker-era Wisconsin GOP.

In what would ordinarily be a shocking development, on Thursday the Clerk of overwhelmingly Republican Waukesha County (in suburban Milwaukee) fortuitously "discovered" 7500 votes for the Republican candidate in the hotly-contested State Supreme Court election, which had been a virtual tie beforehand. Amazingly, the number of newly discovered votes is just high enough to avoid a mandatory statewide recount.

The Clerk in question, one Kathy Nickolaus, received statewide and national attention last fall for making the unique and unusual decision to keep all of the county's election results not on county servers but on her personal PC and only on her PC. From a contemporaneous news story:

Waukesha County Clerk Kathy Nickolaus' decision to go it alone in how she collects and maintains election results has some county officials raising a red flag about the integrity of the system.

Nickolaus said she decided to take the election data collection and storage system off the county's computer network – and keep it on stand-alone personal computers accessible only in her office – for security reasons.

"What it gave me was good security of the elections from start to finish, without the ability of someone unauthorized to be involved," she said.

Nonetheless, Director of Administration Norman A. Cummings said because Nickolaus has kept them out of the loop, the county's information technology specialists have not been able to verify Nickolaus' claim that the system is secure from failure.

"How does anybody else in the county know, except for her verbal word, that there are backups, and that the software she has out there is performing as it should?" he said. "There's no way I can assure that the election system is going to be fine for the next presidential election."

And Nickolaus seemed to have the cockiness of a well protected mafioso down pat:

Several committee members said they were uncomfortable with Nickolaus' refusal to adopt the recommendations (ed: to make changes to the system, including assigning a unique logon and password for each employee).

During one part of the discussion, Dwyer erupted in exasperation at Nickolaus' facial expressions.

"There really is nothing funny about this, Kathy," he said, raising his voice. "Don't sit there and grin when I'm explaining what this is about.

"Don't sit there and say I will take it into consideration," he said, asking her pointedly whether she would change the passwords.

"I have not made my decision," she answered. After supervisors continued to press the issue, Nickolaus indicated she would create three different passwords.

"This isn't that big of a deal.
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It isn't worth an argument," she said. "This is ridiculous."

Nickolaus also said she would make her own assessment of when to back up computer programming for election ballots – and store the more frequent backup in another building, as the auditor recommended.

And this is the tale of how Wisconsin suddenly became Nigeria in terms of electoral transparency and credibility. When third world dictators rig elections they don't really try to hide it. They know that you know what they did.
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The thing is, they don't care – because they also know that there's nothing you can do about it. Thus Wisconsinites will sit back and watch while their state judiciary, Republican-dominated legislature, and Republican-controlled Executive branch assure the good citizens that there's nothing to see here. Everything's on the up-and-up. Her story checks out. Honest.

Nobody will believe such blatant nonsense but it won't matter. Once the a group of criminals get enough cops and judges on the payroll they lose their fear of operating in broad daylight.

I don't usually associate my 60 year-old parents with quality movie suggestions but I am grateful to my dad for making me watch Elia Kazan's 1957 satirical masterpiece A Face in the Crowd. For those of you who have not seen it, it could just as easily be named The Glenn Beck Story or How Rush Limbaugh Became Famous without being the slightest bit misleading.

To make a long story short, Andy Griffith portrays a miserable drunk who, through a series of unlikely events, parlays his folksy, down-home shtick on an Arkansas AM radio station into the role of political kingmaker and media superstar in New York City. Elected officials clamor for the opportunity to appear on his show to trade low-brow populist anecdotes and use the kind of corny expressions and affected aw-shucks accents that they imagine simple 'merican folk use. This clip really captures the flavor of the film:

Behind the scenes, "Lonesome" Rhodes is actually a neurotic tyrant, cynically manipulating the system for his own benefit, abusing his friends and coworkers, and acting vindictively toward anyone who isn't sufficiently deferential. Eventually he is destroyed when a hot microphone overhears him referring to his fans as mindless cattle, and Rhodes ends up alone in his apartment performing his shtick for hired servants and fulfilling his desperate need for adulation with a recorded applause track played repeatedly.

As Glenn Beck's show on Fox News has effectively been canceled due to declining ad revenues and plummeting ratings (Media Matters does a nice retrospective of his greatest hits) I am reminded of Walter Matthau's character in the film complaining in exasperation that despite having voiced contempt for his audience Rhodes will be back; the audience is dumb enough to accept any excuse Rhodes offers and the networks can't resist the temptation of a proven earner.

What comes next for the real life Lonesome Rhodes, now booted off the set at both CNN and Fox? I see a few possible outcomes:

1. Walter Matthau was right and Beck resurfaces elsewhere doing the same horseshit under a different call sign and sponsor.

2. Beck, whose calling card of insanity has always been his willingness to traffic in extreme conspiracy theories and make apocalyptic predictions that will inevitably be proven foolish, goes full Alex Jones and starts devoting his entire media presence to chemtrails, FEMA concentration camps, the Illuminati, the Trilateral Commission, and buried yard gold.

3. Freed from the minimal standards of taste and decency imposed by Fox – which after all IS a mainstream media outlet – Beck goes Westbrook Pegler on us, slowly killing himself with liquor while making a career out of increasingly anti-Semitic and racist outbursts in increasingly obscure media. By the 1960s Pegler had become so unhinged that the John Birch Society newsletter fired him because his views were too extreme. I have very little difficulty seeing Beck go down this path, shambling about in the gutters of the right wing media machine launching tirades of invective against the Goddamn Jews and the Shiftless Negroes before dying of cirrhosis at a city-run men's shelter in Brooklyn.

4. Let's not rule out the possibility of pulling an Al Capp – going on a highly paid college speaking tour until one too many female undergraduates come forward to tell the police that he exposed himself and attempted to sexually assault them.

I don't know with any degree of certainty what is going to happen to Beck, but I am sure that he isn't going to go quietly into the night. He still has an audience willing to hand him money (and do just about anything else The Leader asks) and an insatiable need for attention. I wouldn't be surprised if he ended up with a major radio network, nor if he ended up in his basement paying a coterie of homeless people to nod solemnly during his long rants to no one in particular.

Every time the U.S. engages in one of its periodic made-for-TV post-Vietnam wars military adventures I feel like Bill Murray in Groundhog Day. We see the same images, hear the same arguments, and watch the same cheap partisan bickering (or, if the president in question is a Republican, we see the same hyperbolic jingoism and accusations of treason). The best part is that every time we start a new, uh, mission we get to start fresh and run through all of the same memes from scratch. In our brief involvement in Libya we have already covered my favorites:

1. "We must arm the rebels." You may remember this meme from conflicts such as…well, basically every country in Southeast Asia and Latin America. And the Middle East. Lindsey Graham is among the many GOPers giving this one the hard sell lately, and why not? The logic is flawless! Anybody who says they want to remove Ghadaffi from power must, by definition, be a U.S. ally because we want him out of power too. When two groups of people have the same goals that makes them allies. So we should help our allies out even though A) they have no leadership or organization of any kind and 2) we haven't the slightest idea what they'll do or how friendly to the U.S. they'll be once in power. This worked extremely well in Afghanistan in the 1980s. Bonus: if you arm the rebels, there won't be any need for U.S. ground forces!

2. The "human shields" argument. I think the U.S. has to pay royalties to Israel for this one, as it may not have invented the technique but certainly has perfected it. The U.S. engages in an overwhelming show of air power using ultra high tech weapons; eventually someone with a camera finds a burnt out building with a bunch of civilian corpses lying around; the aggressor then accuses the Bad Guy of intentionally putting his people in a position to be killed in order to score a propaganda victory. This was extremely popular in Gulf War I and we are seeing it again in Libya. Brilliant! Rather than admitting that perhaps America's gee-whiz super high tech precision Smart Munitions might not be as laser guided and pinpoint accurate as the Pentagon (and endless cable shows full of nose camera footage of bombs flying into open windows) may have led you to believe, we decide that the more likely alternative is…uh…that the Bad Guy must have stuffed likely targets with civilians to ensure a high body count! So the possibilities are A) a civilian target was unintentionally bombed or B) Bad Guy wants video of smoking corpses and thus pre-positions a few hundred poor saps in targets of legitimate military value. Let me check Occam's Razor and get back to you.

The reason I find the "human shields" excuse so morally repugnant is that it transfers blame for unintended casualties to the victims. Israel does this constantly: "We execute precision strikes but the Arabs use people as human shields. Blame Hamas, not us." Rather than having the balls to stand up and say, "We believe that we are in a just war and regrettably accept that civilian casualties are unavoidable in modern urban warfare" the aggressors hide behind laughable excuses and redirect responsibility for their own actions.

Good times. Too bad we can only enjoy these memes every few years. If only we were involved in wars more regularly.

When the American auto industry collapsed and came crawling to Washington for handouts in 2008, major restructuring was a precondition for receiving billions in tax dollars. Cutting labor and legacy costs was a priority (shockingly) and GM management presented the United Auto Workers with two alternative scenarios. In one the UAW could maintain its current wage/benefit structure but face the loss of large numbers of U.S. jobs – in other words, better jobs but fewer of them. In the other, existing jobs would be maintained but at lower compensation. Both choices are undesirable. If only there was a way to obtain the best of both worlds, to satisfy existing members while allowing management to cut labor costs.

Thus for the first time in its 70+ year history the UAW agreed to a contract with tiered wages. Tier 1 employees were those employed at the time the contract was signed; they were essentially grandfathered into the wage/benefit package in place at the time of their hire. Tier 2 employees were those hired from that point forward; they received considerably lower wages and minimal benefits. The UAW had previously resisted this scheme for obvious reasons. It's hard to build solidarity when a clear caste system is created in the workforce wherein one guy makes $28/hour and the guy next to him doing the same job makes $13.50/hour. I mean, what could go wrong? Yet the UAW and other unions have been accepting more and more contracts with tiered wages under the threat of losing jobs to sad, low wage hellholes like rural Mexico, Indonesia, or Oklahoma. From the employers' perspective, the beauty is that eventually every Tier 1 employee retires, dies, or quits and the whole workforce is ever-so-slowly transitioned to lower wages without incurring the costs of moving factories or pissing off the existing labor force.

The manufacturing sector is hardly alone. Academia is increasingly divided among secure, well compensated tenured or tenure-track faculty and at-will adjunct or other temporary employees who make 1/3 the salary with no benefits. As tenured faculty retire, of course, they are replaced by the cheaper alternative. My father, a career civil servant, is among the employees of the State of Illinois grandfathered into a generous pension system (although changes have been made to it as well) while all subsequent new hires will receive a much cheaper benefit package with hard caps. The entire business world now runs offices in which older, salaried employees with benefits work alongside temps – including the baffling "permanent temp" – supplied by outside contractors.

Unsurprisingly, GOP budget whiz (*cough*) Paul Ryan's proposal to put Social Security and Medicare – primarily the latter – on the chopping block takes a similar approach. While proposing enormous cuts in benefits, the politically savvy GOP leadership takes great care to exclude anyone currently over the age of 55. And why not? We know that the entire political system is focused on the needs and wants of the Boomers and more specifically the elderly, who vote and complain far more reliably than younger Americans. Besides, those of us under 40 have long since accepted the reality that we will be the first generation that won't "do better" than its parents. Twenty- and thirtysomethings understand how the deck has been stacked; we work to pay for the lifestyle of our elders with the explicit promise that nothing we see ahead of us will ever be ours. The political mantra is "Austerity for thee, not for me."

When John Edwards talked about the "two Americas" in the 2004 and 2008 elections he meant a rich one and a poor one. It is hard to dispute the validity of that argument. Increasingly, however, we are a society bifurcated by age and generation. Those born before 1960 will go cradle-to-grave with the benefits of the New Deal: a social safety net, job security, pensions / benefits, and good wages. Anyone unfortunate enough to be born since then – especially Carter babies and beyond – will have an entirely different standard of living.

It feels great to know that the 55-and-under set is carrying the burden of paying for the existing standard of living of our predecessors even though we'll never reach the Promised Land ourselves. It's like making 20-30 years of monthly payments for a shiny new Ferrari and being rewarded with the keys to a fire-damaged 1977 Ford Ranchero.