Exploring Trollope Country: A Progress Report

Just peeking my head up to say, I'm still writing, and have invested in a copy of Michael Sadleir's indispensable Trollope: A Commentary (my old one went missing in a move ten years ago) to help me keep straight who's who, who lives where, and who's Ralph the Heir, anyway?

The manuscript is now just about as long as Michael Cunningham's "The Hours" and is nearing the break part between Part I and Part II. I'm writing that just because I am in something of a state of shock at how it's flowing. No doubt much painful editing and pruning to follow, and much rewriting, and I need to see if I even have something worth a reader's time...but the pleasure in breathing life into a fictional world and its denizens, yes, it's extraordinary.

It doesn't hurt that in playing in Mr. Trollope's sandbox, I am dealing with the work of the writer who is, simply, to my mind the gold standard of character-building. To quote Nathaniel Hawthorne's estimation of Trollope:

It is odd enough that my own individual taste is for quite another class of works than those which I myself am able to write. If I were to meet with such books as mine by another writer, I don't believe I should be able to get through them. Have you ever read the novels of Anthony Trollope? They precisely suit my taste,—solid and substantial, written on the strength of beef and through the inspiration of ale, and just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business, and not suspecting that they were being made a show of.

Trollope quotes this estimate in his Autobiography, and comments that "the criticism, whether just or unjust, describes with wonderful accuracy the purport that I have ever had in view in my writing. I have always desired 'to hew out some lump of the earth' and to make men and women walk upon it just as they do walk here among us." (Autobiography, 145).

So, to the extent that writing a sequel to a long-dead author's work is stealing (We-ell, P.D. James might beg to differ), I am stealing from the very best.

Proprietary Angst

This interview reflects a stunningly proprietary attitude toward Jesus:



As Aslan's publisher summarizes his thesis:

Two thousand years ago, an itinerant Jewish preacher and miracle worker walked across the Galilee, gathering followers to establish what he called the “Kingdom of God.” The revolutionary movement he launched was so threatening to the established order that he was captured, tortured, and executed as a state criminal.

Within decades after his shameful death, his followers would call him God.

Sifting through centuries of mythmaking, Reza Aslan sheds new light on one of history’s most influential and enigmatic characters by examining Jesus through the lens of the tumultuous era in which he lived: first-century Palestine, an age awash in apocalyptic fervor. Scores of Jewish prophets, preachers, and would-be messiahs wandered through the Holy Land, bearing messages from God. This was the age of zealotry—a fervent nationalism that made resistance to the Roman occupation a sacred duty incumbent on all Jews. And few figures better exemplified this principle than the charismatic Galilean who defied both the imperial authorities and their allies in the Jewish religious hierarchy.

Balancing the Jesus of the Gospels against the historical sources, Aslan describes a man full of conviction and passion, yet rife with contradiction; a man of peace who exhorted his followers to arm themselves with swords; an exorcist and faith healer who urged his disciples to keep his identity a secret; and ultimately the seditious “King of the Jews” whose promise of liberation from Rome went unfulfilled in his brief lifetime. Aslan explores the reasons why the early Christian church preferred to promulgate an image of Jesus as a peaceful spiritual teacher rather than a politically conscious revolutionary. And he grapples with the riddle of how Jesus understood himself, the mystery that is at the heart of all subsequent claims about his divinity.

Zealot yields a fresh perspective on one of the greatest stories ever told even as it affirms the radical and transformative nature of Jesus of Nazareth’s life and mission. The result is a thought-provoking, elegantly written biography with the pulse of a fast-paced novel: a singularly brilliant portrait of a man, a time, and the birth of a religion.

This is not particularly radical stuff; some of this traces back to Robert Graves's King Jesus and, absent the hint of armed rebellion, has been developed by John Dominic Crossan and Marcus Borg. I don't say this to detract from Aslan's scholarship and originality; I haven't read his book, and I'm only looking at the précis. (I will read it, though, because it sounds quite interesting.) Rather, I think that Aslan's claim that he is well within the scholarly mainstream (or, at any rate, within one camp thereof) is entirely correct from what little I've read.

(Now, I'm in a funny position defending Aslan's vision of the life of Jesus,as I would be in defending Borg's or Crossan's--or, for that matter, Bernard Shaw's--because, while I think there is much truth in it, it misses the whole truth. You either accept, for whatever reason, the Gospel's theological historical claims or you do not. For reasons that I will spare you at present--a large part summarized best for me by Charles Gore, with the caveat that the exact nature of certain of the acts of Jesus recorded may be lost to time, but their effect, the emotional and spiritual effect they had, are not, and represent as close as we can get--I do.)

But because he is a Muslim, his work is, the Fox interviewer suggests, inherently suspect, in a way that Borg's or Crossan's is not? That is simply appalling. I wonder if a Christian scholar writing about Islam would face such suspicion, or one writing about Judaism.

And if the answer is no, then the question must surely be, why then should Aslan?

The bigotry and ignorance undermining the interview is, to quote Emily Nussbaum (uh-oh! Is she qualified to have an opinion?), "absolutely demented."

Christians should be thrilled that non-Christians want to learn more about Jesus, and study the import of his life; an "Amen chorus" preaching only to the converted is the first sign of a dead movement.

The Appearance of Impropriety

I have to say, Clarence Tomas's wife's political activism has long presented, and continues to present, a significant problem for any notion that her husband is even interested in complying with judicial ethics:

In late 2009, Thomas founded the political advocacy group Liberty Central, which would later become a fierce player in the opposition to health care form. Detractors pointed out that Liberty Central was a potential vehicle for people with interests before the Supreme Court to make anonymous donations that might influence her husband.

The group was formed with a $500,000 anonymous donation that came as the Supreme Court was considering Citizens United, a case that ultimately resulted in loosening the restrictions on corporate giving to political campaigns. The anonymous donor was later revealed to be Harlan Crow, the Texas real estate developer. Crow was also a friend of Clarence Thomas', and he was later linked to a scandal involving the justice's failure to publicly disclose gifts from the developer and trips aboard his private jet. (It didn't help that Justice Thomas had also failed to include his wife's $150,000 annual salary from Liberty Central on his financial disclosure forms, which he later had to amend.)

****

The recent revelations about Thomas' role in Groundswell will no doubt resurrect the debate over whether her advocacy causes conflicts for her husband. Gun safety, immigration, voting rights and voter ID, environmental concerns—all of these issues have been covered by Groundswell, and all of them are subjects that regularly come before the Supreme Court.

Justice Thomas will almost certainly deal with any conflicts arising out of his wife's role in Groundswell the way he did in relation to those arising out of Liberty Central: ignore them, and then vote on cases on which she was paid to advocate.

Suddenly Abe Fortas is looking better, hmm?

"I Have a Cunning Plan..."

Let's be charitable and hope that this falls into the "swing and a miss" category.

The Archbishop of Canterbury announced to the press that it is targeting payday lenders:

he archbishop of Canterbury has told Wonga that the Church of England wants to "compete" it out of existence as part of its plans to expand credit unions as an alternative to payday lenders.

The Most Rev Justin Welby said he had delivered the message to Errol Damelin, the chief executive of Britain's best-known payday lender, during a "very good conversation".

"I said to him quite bluntly 'we're not in the business of trying to legislate you out of existence, we're trying to compete you out of existence'," he told Total Politics magazine.

****

In June, Wonga raised the standard interest rate it quotes on its website to 5,853% APR, leading to renewed calls from poverty campaigners for a cap on the cost of short-term credit.

Someone borrowing £200 for a month from Wonga will typically pay back £270.

Welby, who has served on the parliamentary Banking Standards Commission, said he wanted to create "credit unions that are both engaged in their communities and are much more professional – and people have got to know about them."

Huh. Sounds like a plan, right? I mean, non-coercive, just opening a campaign on the social justice front, and making a better way available--it's a conservative response, but one which (unlike anything the American GOP has suggested in opposing the President's agenda, for example) has the virtues of (1) acknowledging the problem; and (2) proposing a solution.

Or perhaps not. As Felix Salmon notes:

Welby didn’t really announce anything, there is no real plan in place for anybody to compete with the payday lenders, and in fact, if you read what he says carefully, it’s good news, not bad news, for those he is criticizing. According to Welby, when he met the head of Wonga, the biggest payday lender in Britain, the bishop said to the businessman that “we’re not in the business of trying to legislate you out of existence, we’re trying to compete you out of existence”. Which must have been music to Wonga’s ears — since competition from the Church is the last thing Wonga is worried about. The big risks, for Wonga, are legislative.

The fact is that Welby’s plan “to fight capitalism with capitalism”, in McDermott’s words, is doomed to fail. I’m a big fan of credit unions and of non-evil alternatives to payday loans, but the only way to beat Wonga, and the payday lenders more generally, is to make their actions illegal. You could set up a credit union at every church in the country, offering vastly better deals than anything available from Wonga, and Wonga wouldn’t bat an eyelid — because the first thing you learn, when you study payday lenders, is that they don’t compete on price.

Payday lenders do compete with each other, quite aggressively, but they do so on convenience first, and friendliness second. If you want to be successful in payday lending, you have to be convenient above all; that means having welcoming storefronts which are open very late and at weekends, and it also means — in the case of Wonga — being incredibly easy to use from any smartphone. The way that the competition works is that they start with someone who needs cash; the company which can get that person the cash in the quickest and easiest manner will be the winner.

Moreover, as the Guardian has reported, the Archbishop's free market competition idea could take the wind out of the sails of a real effort at regulation:

The Office of Fair Trading has referred the payday loans market to the Competition Commission, saying there are deep-rooted problems with the way competition works and that lenders are too focused on offering quick loans.

The regulator said variable levels of compliance with credit laws and guidance meant firms that invest time and effort to comply were at a competitive disadvantage.

The referral follows a year-long review of the sector which exposed widespread evidence of irresponsible lending and breaches of the law, which the OFT said were causing "misery and hardship for many borrowers".

Although lenders say their high-cost loans are designed to be taken out over short periods and that annual interest rates of often more than 4,000% are not a fair indication of the cost, the regulator found companies were making up to 50% of their money from customers who extended or rolled over loans or incurred late payment charges.

***

The OFT's chief executive, Clive Maxwell, said: "Competition appears not to be working properly in the payday lending market, allowing firms to profit from making loans that cannot be paid back on time. We have seen evidence of financial loss and personal distress to many people.

"The Competition Commission can now conduct a detailed investigation to get to the root causes and, if necessary, use its far reaching powers to fix the payday lending market."

The fact that the Church of England "holds a more than £1m investment in one of the main financial backers of Wonga" might encourage a cynic to conclude that the Archbishop's plan is more cunning than it seems--that it is designed to protect the Church's stake for the "decade long" period Welby said the credit union option would take to set up and really compete with Wonga, but I don't want to presume bad faith here; the Archbishop has disclaimed knowledge, and he has been in place so short a time that he quite reasonably could not know. That said, as I pointed out over three years ago, the Church of England has previously invested in "predatory equity," and really should get to work on formulating and following an ethical investment policy.

And, as Salmon points out:

Welby is in fact a legislator: he sits and votes in the UK parliament, where he has an important voice. If he’s decided that he doesn’t want to legislate payday lenders out of existence, then he has basically decided that he’s OK with them continuing to gouge the very Britons who can least afford such things. Because there is no way he’s ever going to be able to effectively compete with them.

Let's hope that the Archbishop rethinks this cunning plan, and comes up with something more pragmatic.

"Frankenstein Never Scared Me. Marsupials Do."

I've been in Washington DC for the past six days, at a conference, hence the absence of posts. While I was here, I had a great opportunity to rekindle old friendships--two of my favorite people form my high school years were in the City (one's a resident) and we got a chance to catch up a bit. In particular, my friend who lives in DC really laid himself out for la Caterina and myself; he took us around the City, ferried us to destinations unknown to the non-resident (you can get first rate sushi in DC!), and was able to make time to hang out.

My other friend was more busy--he was hosting a large, complex conference, and when I was unavailable the night we had dinner planned, generously invited us to attend a festive reception, where his band played--and did a fantastic job. My old friend sang lead vocals on several Springsteen songs, and, as they say, killed it.

Later in the week, my friend who lives in the city and I had a great, long rambling conversation, during which we talked about (among many other subjects) acting and our own youthful theater days. My friend slipped into an epic Christopher Walken impression at one point, which led him to refer me to this classic.

I also learned more about the death of one of our friends back in 1996, a talented actor who had been among those most welcoming to me when I joined the school drama group. May he rest in peace; we are poorer for his loss.

Finally, in addition to all this, I have been obsessively working away at my current writing project. I have no idea if it's of publishable quality, but I'm having fun with it. By which I mean, I can't stop working on the bloody thing. So let's hope it is of publishable quality, hmmm?

It's a novel, and when I first tried my hand at fiction back in the late 80s-early 90s, I was able to come up with characters readily enough, but all my projects dried up after 10 or 15 pages. I could write a short story or two, but lacked the vision, the depth of imagination to sustain the thing for more than that. My imagination was not thickly forested enough to bring an extended narrative to life. So when the idea for a novel occurred to me about six years ago, I wrote a few chapters (three to be precise), which la Caterina read and really liked, and then I promptly dried up. Then, back in April, I announced I would have another go at it, and slowly got under way again.

This time, I have not had the drying up problem that debarred me from trying to write fiction all those years ago. I didn't even write an outline until I had first drafted Chapter Twelve, and that was really just to work out how to get to the halfway point, where I want to break between Part One and Part Two. One concern I had was making the parts appropriately long for a Victorian novel (if you didn't follow the link, it's a historical political novel in the Trollopian manner) without making unsustainable demands on the reader. So I looked into word length, and have been using this helpful ready reckoner. As of a couple weeks ago, I had passed Animal Farm and then yesterday Viola Canales' The Tequila Worm,and was closing in on Ray Bradbury's Fahrenheit 451 and The Crying of Lot 49. Well, we'll see how long the flood continues--but I certainly hope it does.

Because the big, seemingly daunting Frankenstein of finding a story to tell doesn't scare me; the fast, darting marsupial of getting it all to gel on the page does.

O Tempora! O Mores!

If you are, as I am, a lawyer of a certain vintage, this scene is one you will remember:



Teh point of it, of course, is that while Hart thinks he's being a free spirit, Kingsfield thinks he's violating the contract between them and all the members of the class--to engage together in study and discussion, as orchestrated by Kingsfield. (I think it's fair to say that, while the novel and the film, to a lesser extent, side with Hart, the subsequent series draws ever nearer to Kingsfield's viewpoint.)

Which brings me to this rather extraordinary little story:

J.K. Rowling's initial regret at the revelation of her secret identity as a critically acclaimed debut crime novelist has now turned into anger. It was her lawyers whodunnit.

Just days after she was outed as Robert Galbraith, author of the Cuckoo's Calling, the author revealed that a partner at Russells law firm was the cause of the disclosure by telling his wife's best friend who Galbraith really was.

The novel, billed as the first of a series of mysteries to be unravelled by private investigator Cormoran Strike, was published in April but the nom-de-plume of the bestselling author of the Harry Potter books and the adult novel The Casual Vacancy only emerged after the The Sunday Times followed up a message posted on Twitter by a user called JudeCallegari.

Rowling, who initially spoke of the "liberating experience" of adopting an alias, said in a statement: "I have today discovered how the leak about Robert's true identity occurred. A tiny number of people knew my pseudonym and it has not been pleasant to wonder for days how a woman whom I had never heard of prior to Sunday night could have found out something that many of my oldest friends did not know.

"To say that I am disappointed is an understatement. I had assumed that I could expect total confidentiality from Russells, a reputable professional firm, and I feel very angry that my trust turned out to be misplaced."

Russells told Rowling's agent when the truth emerged. The company said in a statement: "We, Russells Solicitors, apologise unreservedly for the disclosure caused by one of our partners, Chris Gossage, in revealing to his wife's best friend, Judith Callegari, during a private conversation that the true identity of Robert Galbraith was in fact JK Rowling.

"Whilst accepting his own culpability, the disclosure was made in confidence to someone he trusted implicitly. On becoming aware of the circumstances, we immediately notified JK Rowling's agent. We can confirm that this leak was not part of any marketing plan and that neither JK Rowling, her agent nor publishers were in any way involved."

(My italics.)

Seriously? Her lawyers breach confidentiality and then have the face to blame the person whom one of them told--a person who herself has no duty of confidentiality--for the resultant exposure?

Speaking as a lawyer, that is, quite simply, breathtaking in its abject lack of professionalism.

Kingsfield would have let him just walk out.

The Verdict and the Law

This is a post that I have no desire to write. But the reaction to the acquittal of George Zimmerman for shooting Trayvon Martin is, to my mind, completely understandable, and I confess to a good deal of frustration about the response to it by some of my fellow lawyers, whose reactions seem at best blinkered and disconnected. The breaking point for me was this exchange involving Jonathan Turley, whom I usually admire:

JUDY WOODRUFF: Let me try to broaden this out.

Jelani Cobb, does this verdict speak in any way to the ability of minorities in this country to get a fair trial?

JELANI COBB: Well, I think this verdict doesn't tell us anything about race and the justice system that we didn't already know.

And what's disturbing about this is, you know, regarding Professor Swain's previous comment, is we have said that the amount of crime in African-American communities somehow or another works against someone, that's endorsing the very logic of racism.

Like, no amount of white crime would allow us to simply make a blanket prima facie assumption that a white person is a criminal.

And so each individual is supposed to be regarded on their own merits. I thought that is what was key to the Constitution and its guarantee of individual rights.

And so in endorsing this kind of profiling, this kind of blanket profiling, the only thing that we will be guaranteed of is more incidents like Trayvon Martin's tragic death in the future.

JUDY WOODRUFF: Jonathan Turley, you're shaking your head here.

JONATHAN TURLEY: No. Where I disagree is, is that once again, we seem to be detached from what the evidence was.

This jury at the end of this process knew nothing more of what happened at that fateful night than at the beginning of the trial. There were no witnesses to tip the balance. Essentially, the situation was in equipoise. You had two narratives that had support from different witnesses.

The jury is not there to make a guess and it's certainly not there to make social judgment calls. They didn't have enough to convict. And I know people are frustrated by that. But the system worked. This was a fair trial.

JELANI COBB: May I please respond?

JUDY WOODRUFF: Yes, go ahead.

JELANI COBB: Well, so this wasn't a situation of equipoise, because the fact of the matter is, whatever the conflict was, it was precipitated by Mr. Zimmerman.

The police -- the dispatcher told him not to get out of his vehicle. He proceeded to get out of his vehicle. This is a person who followed someone by car and on foot. And if there was a conflict, if there had been a physical conflict that evolved out of that, it would have been because Mr. Martin felt threatened, which is a justifiable, reasonable presumption.

If anyone is walking down a dark street at night in the rain and someone has followed them in a car and on foot, you might presume that you are actually at risk.

And so if Trayvon Martin struck him first, if Trayvon Martin struck him numerous times, this would be the action of somebody who reasonably feared for his life.

JUDY WOODRUFF: We're going to let Jonathan Turley respond. And then I have a final question for all of you.

JONATHAN TURLEY: Sure. Mr. Cobb, where I disagree with you -- and we can't say that the jury believed Zimmerman or even liked Zimmerman in this decision. They simply didn't have enough to convict Zimmerman.

But the actions you described were legal. He's allowed to get out of his car. He's allowed to follow someone. He's even allowed to be armed.

And I think that people are investing so much in the case that they don't recognize that these were lawful acts, and you have to presume things in this case that a jury's not supposed to presume when there's a presumption of innocence.

(My italics)

This is the kind of abstract logic-chopping nonsense that gives our profession a bad name. The notion that because a series of acts is, when broken out of context and viewed discretely, each individually lawful, the sum of the actions taken together is not sufficient to instill fear of bodily harm in the prey would create a stalker and an abuser's charter. Think about it: it's a dark, rainy night, in a desolate location. An adult in a car follows a kid in the dark. The kid tries to avoid him. The adult gets out of the car and continues the pursuit. Even if Trayvon Martin didn't know Zimmerman was armed, he had every right to fear for his life.

If that's your son, your nephew, your godson--anybody you actually care about, as opposed to an abstraction in a law school exam--do you really believe that kid doesn't have any reason to fear for his safety? Because that's the conversation between Cobb and Turley--Cobb is saying that Trayvon Martin had a right to self-defense, and that the aggressor, Zimmerman, put him in fear of serious bodily injury or death. Turley is responding that Martin's fear doesn't count until Zimmerman performs an independently unlawful act.

Turley's willingness to decontextualize the events leading up to Martin's death is important because, looked at in context, with Zimmerman as the aggressor, as I believe is the proper analysis, the correctness of the verdict even under the self-defense-on-steroids provided by Florida law is far less clear. Under Florida's self-defense statute self-defense is limited in the case of an aggressor, who must show:

The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

(My emphasis.) Now, Zimmerman did not identify himself as a Neighborhood Watch volunteer, or take any steps to dispel Martin's entirely legitimate fear for his life. Nor do I find his self-serving statement that he was headed back to the car credible in light of his fired-up,"these assholes always get away" conversation with the dispatcher, whose instruction to not get out of the car and follow he had just minutes ago disobeyed. I find that so incredible--Zimmerman charges out of the car, ignoring instructions, cursing that this "fucking punk" (Zimmerman's words) is going to get away, and then immediately decides to turn back to the car.

The jury appears to have joined Turley in decontextualizing--and also in giving the defense the benefit of a "Stand Your Ground" defense that the defense did not in fact raise, if this interview with a juror is to be believed:

COOPER: Did you feel like you understood the instructions from the judge? Because they were very complex. I mean, reading them, they were tough to follow.
JUROR: Right. That was our problem. It was just so confusing what went with what and what we could apply to what. Because I mean, there was a couple of them in there that wanted to find him guilty of something. And after hours and hours and hours of deliberating over the law and reading did over and over and over again, we decided there’s just no way — no other place to go.
COOPER: Because of the two options you had, second degree murder or manslaughter, you felt neither applied?
JUROR: Right. Because of the heat of the moment and the Stand Your Ground. He had a right to defend himself. If he felt threatened that his life was going to be taken away from him or he was going to have bodily harm, he had a right.
COOPER: Even though he got out of the car, followed Trayvon Martin that didn’t matter in the deliberations. What mattered was the final seconds, minutes when there was an altercation and whether or not in your mind the most important thing was whether or not George Zimmerman felt his life was in danger?
JUROR: That’s how we read the law. That’s how we got to the point of everybody being not guilty.

But even if you believe that the unsworn statement of Zimmerman and the other evidentiary issues are enough to eke out reasonable doubt and justify an acquittal--well, fair enough, but that doesn't make this case a ringing endorsement of the notion the the rule of law always leads to justice. Earlier in the NewsHour conversation with Turley and Cobb, the other two panelists had a telling discussion:

CHRISTINA SWARNS: You know, with -- I obviously agree. Young black men shouldn't be getting killed across this country.

But what happened in Florida to Trayvon Martin was that Mr. Zimmerman looked at him walking down the street with a bag of Skittles and a bottle of iced tea and determined that based on factors that he could see this young man was a criminal.

He warranted a call to the police, he warranted being followed, he warranted being followed -- Mr. Zimmerman getting out of his car and following him down the street on foot, notwithstanding the fact that the police department told him not to get out of the car, and notwithstanding the fact that everyone agrees that this young man was doing absolutely nothing wrong.

There was nothing criminal about what he was doing. There was nothing apparently criminal about what he was doing. The only thing ...

CHRISTINA SWARNS: ... about him was that he was black.

CAROL SWAIN: We know from other evidence that the school had apprehended him and found jewelry.

CHRISTINA SWARNS: Mr. Zimmerman knew none of that. Mr. Zimmerman didn't know a single thing about that. All he knew at that moment was that Mr. -- he didn't know anything about this child. This was a teenager walking down the street.

Again, the Zimmerman defender here is eager to impute to Zimmerman knowledge of some ground for suspicion that Zimmerman could not possibly have had, and that nobody claims he had. Somehow the fact that Trayvon Martin was not a perfect teen retroactively justifies his being profiled by Zimmerman--who just presumed from Martin's youth color and clothing that he was a criminal.

Turley is right to stress that the trial was a fair one, and comported with due process. Where he is terribly wrong, in my opinion, is to presume that a fair trial is not just a necessary but a sufficient guarantee of justice. This case in no way stands for that principle; quite the obverse, rather: that our justice system is profoundly flawed, and that human judgment is a very dicey business indeed.

I resemble that...

This could pretty much be my cat Giles:



Sorry, folks, a lot going on, what with the appalling acquittal of George Zimmerman of all charges, the House Republicans weighing a bill to "solve" the problem of banks violating state recording statutes and other laws regarding foreclosure by the abolishing such laws and creating a federal registry ultimately owned and operated by the very banks that circumvented those laws wholesale (seriously, the party of small government nationalizing every property conveyance and encumbrance in the nation, and privatizing the governmental function dating back to the Middle Ages of preserving the integrity of property ownership? Oy.), the sorrow over at Balloon Juice, where John Cole's cat and blog-mascot met a terrible end and--well, not a lot of stuff I want to write about the last couple of days.

No, I think a cat cartoon that makes me think of my own little feller is the way to go tonight.

The Moon Was A Balloon

So, I've always been a fan of the actor-writer David Niven. His charming memoirs, The Moon's a Balloon and Bring on the Empty Horses have been favorites of mine since my high school days (essentially, the British Army and Hollywood given the Wodehouse treatment by a genuinely marvelous storyteller), and when, a few years later, I found his first--though much earlier--novel, Once Over Lightly (1951),well, I grabbed it.

I admit that I've always loved Niv's way with an anecdote--like my late, beloved grandfather, he knew that constructing a good yarn is in the details, and in keeping the focus off the teller. Stories about the clever thing you or I have done--let someone else tell 'em. Much better to be the bemused observer, or, even better, the butt of the joke, Niven's stories read so well because they are not about how wonderful David Niven is.

As to the details? Improbability is your friend; pile 'em on:



See?

Niven often was cast in rather weak films; one reviewer once sadly noted: "I sometimes think that David Niven/Should not take all the parts that he's given." So, when his career hit a rough patch, Niven branched out into TV. His Four Star Productions (formed with Dick Powell, Ida Lupino and Charles Boyer) gave Niven a chance to create and star in his own vehicles. The best known of these was The Rogues, of which I had until tonight only heard or read. Then, by sheer blind luck, I stumbled on the first episode, above. It's a 1964-65 caper series about a family of con-men (and one woman), who swindle the deserving rich. The pilot (above) is especially fun, as Walter Matthau plays the improbable mark.

Dated, perhaps. But the fizz is still in the bottle.

"It is a Constitution we are Expounding"

I am reading Radley Balko's Rise of the Warrior Cop: The Militarization of America's Police Forces, and want to comment briefly on what I've read thus far. The topic of the book is important, and Balko's zeal at looking at the harms that overly militarized police using SWAT techniques in grossly inappropriate circumstances (gambling busts, pot raids, etc.) and his inquiry into root causes of the problem is commendable.

The non-libertarian reader will run into a couple groans early on; Balko's potted history of policing in the Roman Republic and early Empire, as well as the medieval methods of law enforcement raise interesting questions but are rather dashed off. His constitutional history is broad-brush and dicey, and his depiction of a "Symbolic Third Amendment" and his downplaying the role of racism in the posse comitatus act, are unforced errors that damage this otherwise useful book. (The latter in particular can obscure the fact that he has a point about the erosion of the Act) More significantly, though, in his introduction he begins by posing the question "Are cops constitutional?" a question he draws from the work of Roger Roots, who writes:

Uniformed police officers are the most visible element of America's criminal justice system. Their numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide. Police expenses account for the largest segment of most municipal budgets and generally dwarf expenses for fire, trash, and sewer services. Neither casual observers nor learned authorities regard the sight of hundreds of armed, uniformed state agents on America's roads and street corners as anything peculiar — let alone invalid or unconstitutional.

Yet the dissident English colonists who framed the United States Constitution would have seen this modern 'police state' as alien to their foremost principles. Under the criminal justice model known to the Framers, professional police officers were unknown. The general public had broad law enforcement powers and only the executive functions of the law (e.g., the execution of writs, warrants and orders) were performed by constables or sheriffs (who might call upon members of the community for assistance). Initiation and investigation of criminal cases was the nearly exclusive province of private persons.

At the time of the Constitution's ratification, the office of sheriff was an appointed position, and constables were either elected or drafted from the community to serve without pay. Most of their duties involved civil executions rather than criminal law enforcement. The courts of that period were venues for private litigation — whether civil or criminal — and the state was rarely a party. Professional police as we know them today originated in American cities during the second quarter of the nineteenth century, when municipal governments drafted citizens to maintain order. The role of these "nightly watch" officers gradually grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.

While this historical disconnect is widely known by criminal justice historians, rarely has it been juxtaposed against the Constitution and the Constitution's imposed scheme of criminal justice. "Originalist" scholars of the Constitution have tended to be supportive, rather than critical of modern policing. This article will show, however, that modern policing violates the Framers' most firmly held conceptions of criminal justice.

The modern police-driven model of law enforcement helps sustain a playing field that is fundamentally uneven for different players upon it. Modern police act as an army of assistants for state prosecutors and gather evidence solely with an eye toward the state's interests. Police seal off crime scenes from the purview of defense investigators, act as witnesses of convenience for the state in courts of law, and instigate a substantial amount of criminal activity under the guise of crime fighting. Additionally, police enforce social class norms and act as tools of empowerment for favored interest groups to the disadvantage of others. Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.

Now, Balko concludes that Roots' argument may not be practical, but it's certainly provocative." (Introduction at x) He goes on to say that ""On at least one point, most criminologists agree with him [Roots]no one can say for sure whether the Framers would have approved off modern policing, but it's relatively certain that they wouldn't have recognized it." (Id.) That last sentences, I think, indisputably true. That said, Roots' claim, that the variance of criminal justice as it is administered by the states today from the colonial and post-revolutionary era amounts to grounds upon which the modern practices can be deemed unconstitutional is no way to do constitutional law.

Let me explain. The Framers did not intend the original Constitution or the Bill of Rights to limit the police powers of the states. This isn't controversial for constitutional scholars, by the way; the Supreme Court in fact held this in 1833, in Barron v. Baltimore:

The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective [p248] governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

Of course, not every Supreme Court decision, even (especially?) those of the Marshall Court is universally accepted. But Barron is pretty solidly orthodox until the Civil War Amendments take hold. You can find it in the Federalist Papers, the writings of Justice Story, etc. It's pretty much the one thing Lawrence Tribe and Robert Bork would have agreed on. (You can read an interesting counter-argument, though, one focusing on 19th Century lower court practice, here. However, even this article accepts that the Supreme Court held this line pretty steadily, and looks at the lower court cases as capturing natural law reasoning in defense of classical civil liberties values in an era where the lower federal courts believed they could create state law precedent from universal values.)

So, no. The Framers might very well have found modern policing entirely alien, might have found it antithetical to their values, but not unconstitutional if adopted by the states themselves.

A longish post about a small point--one that is at best peripheral to the author's argument, and in fact is better directed at Roots' claims than Balko's citation of it as a means of measuring where we have come from the early 19th Century. So if this reads like a slam at Balko, I don't mean it to be; the book is, once when gets into the specifics and the compendious research he has done, compelling reading.

[Edited for Clarity and to remove some word salad]

The Most Dangerous Branch

Years ago, in the brief legal heyday of constitutional liberalism, the best expression of the conservative critique of the early Warren Court was posed by Alexander Bickel in his The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962). Bickel, like Learned Hand before him, questioned the legitimacy of judicial review of statutes on the ground of conformity to the Constitution, and described the "counter-majoritarian difficulty" posed by judicial review--that is, a small group of unelected judges striking down the work of democratically elected representatives is inherently a curb on democracy, and can, where the judges do not carefully limit themselves to actual enforcement of the constitutional limits on legislation, undermine democracy.

Note the caveat: Where the judges do not carefully limit themselves to actual enforcement of the Constitutional text.

Notably, Bickel published The Least Dangerous Branch eight years after the Court issued its decision in Brown v. Board of Education, and in the midst of "massive resistance" by the states to the decision (for the definitive account, see Richard Kluger's Simple Justice. So conservative opposition to judicial review really crystallized around a decision that clearly enforced a constitutional provision: Brown held that legally mandated racially segregated education violated the Fourteenth Amendment's Equal Protection Clause, providing that "No state shall...deny to any person within its jurisdiction the equal protection of the laws." It's hard to imagine any paradigm of judicial review in which Brown is wrongly decided.

Still, deference to the elected representatives of the people became the hallmark of conservative legal thought from Bickel to Bork, and Scalia.

Until, of course, it didn't. There were harbingers of conservative legal activism--the Rehnquist Court's "New Federalism" constructed a non-textual residuum of power to the States and called it a part of the federal constitution, to take the greatest pre-Bush v. Gore example. Also, the Rehnquist Court's habeas corpus decisions created a new common law doctrine called by it "abuse of the writ" and steadily whittled away at the availability of the Great Writ, to the point where it more resembles the little writ. But before Bush v. Gore, these inroads of conservative activism purported to be consistent with the judicial modesty owed the democratically elected branches.

In the Roberts Court era, though we have seen a steadily emboldened partisan majority embrace judicial activism in a startling, increasingly overt way; as I have previously pointed out, it started modestly:

A minor but salient example that I've pointed out before, in Bell Atlantic Company v. Twombly, the Court in an opinion Scalia joined overturned 50 years of unbroken precedent interpreting the Federal Rules of Civil Procedure consistent with Congress's expressed policy that pleadings be liberally construed to create a brand new, tougher standard that made it easier for defendants to get courts to dismiss cases. The statute hadn't been amended, Congress had not changed the declaration of policy, even; the Court just didn't like the result.

Since then, we have seen the Court water down the Fourth Amendment based on a rationale that is patently not even believed by the majority relying on it, re-interpret statutes to allow big corporations to opt out of federal regulatory statutes by thwarting enforcement, and, finally, gut the Voting Rights Act of 1965, and doing it in such a way that the majority can be said to have effectively repealed the Fifteenth Amendment.

Yes, you read that correctly. As I've been living with the case, my outrage at its reasoning has actually overtaken and surpassed my outrage at the Court's conclusion, because it effectively stripped Congress of the deference due it in exercising a power explicitly granted it by the Fifteenth Amendment. In a stunning reversal of ordinary canons of construction, the Court narrowed the Fifteenth Amendment to preserve the balance of power between the Federal and State governments it found implicit in the Tenth Amendment, and elevated this wholly made up notion of "equal sovereignty" to impose a intermediate scrutiny on the VRA, a standard of review like that applicable to a governmental action which arguably infringes a constitutional provision, not the far more deferential review accorded to an action taken pursuant to a specific enumerated power:

More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft, 501 U. S. 452–462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973) ; some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections.
***
Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960) ; Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911) . Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580

By treating the VRA as inherently suspect, the majority effectively stripped it of its status as an act of Congress undertaken pursuant to a specifically enumerated power. The majority has effectively deleted section 2 of the Fifteenth Amendment from the Constitution by treating a statute passed under its authorization as presumptively unconstitutional.

But don't take it from me; here's a troika of conservatives of the Bickel school:

Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.

Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration's advocate in the Supreme Court, thought the court's decision was just wrong.

"Because we're not there yet," he says. "We're not there yet, and the facts on the ground in Shelby County itself showed that."

Stanford's [Michael] McConnell says the decision's reasoning is just "made up."

"There's no requirement in the Constitution to treat all states the same," he said. "It might be an attractive principle, but it doesn't seem to be in the Constitution."

John McGinnis of Northwestern University Law School agrees, suggesting that the court's conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post Civil War amendments.

"I'm sorry to say I think this opinion was as singular a failure as I've seen in the history of the Supreme Court," McGinnis said at a recent judicial conference.

We may be nearing the point where Judge Janice Rogers Brown's appalling paean of praise to unlimited conservative judicial subjectivism, titled, appropriately enough "A Whiter Shade of Pale") becomes the dominant view on the Supreme Court.

Why Do You Care?

For a straight married guy who is a practicing Christian, I am sometimes told, I am pretty invested in GLBT equality. And that is, quite simply, true. And this past Sunday, Pride Sunday, I thought about writing a post explaining why that is, but ultimately rejected the idea as self-indulgent.

Then I saw this account of a mother whose son came out to her and her husband, only to have them tell him that "since you know what the Bible says, and since you want to follow God, embracing your sexuality is not an option." As Linda Robertson writes:

We thought we understood the magnitude of the sacrifice that we -- and God -- were asking for. And this sacrifice, we knew, would lead to an abundant life, perfect peace and eternal rewards. Ryan had always felt intensely drawn to spiritual things; He desired to please God above all else. So, for the first six years, he tried to choose Jesus. Like so many others before him, he pleaded with God to help him be attracted to girls. He memorized Scripture, met with his youth pastor weekly, enthusiastically participated in all the church youth group events and Bible Studies and got baptized. He read all the books that claimed to know where his gay feelings came from, dove into counseling to further discover the whys of his unwanted attraction to other guys, worked through painful conflict resolution with my husband and me and built strong friendships with other guys -- straight guys -- just like the reparative therapy experts advised. He even came out to his entire youth group, giving his testimony of how God had rescued him from the traps of the enemy, and sharing, by memory, verse after verse that God had used to draw Ryan to Him.

But nothing changed. God didn't answer his prayer, or ours, though we were all believing with faith that the God of the Universe, the God for whom nothing is impossible, could easily make Ryan straight. But He did not.

Though our hearts may have been good (we truly thought what we were doing was loving), we did not even give Ryan a chance to wrestle with God, to figure out what he believed God was telling him through scripture about his sexuality. We had believed firmly in giving each of our four children the space to question Christianity, to decide for themselves if they wanted to follow Jesus, to truly own their own faith. But we were too afraid to give Ryan that room when it came to his sexuality, for fear that he'd make the wrong choice.

Basically, we told our son that he had to choose between Jesus and his sexuality. We forced him to make a choice between God and being a sexual person. Choosing God, practically, meant living a lifetime condemned to being alone. He would never have the chance to fall in love, have his first kiss, hold hands, share intimacy and companionship or experience romance.

And so, just before his 18th birthday, Ryan, depressed, suicidal, disillusioned and convinced that he would never be able to be loved by God, made a new choice. He decided to throw out his Bible and his faith at the same time and try searching for what he desperately wanted -- peace -- another way. And the way he chose to try first was drugs.

We had unintentionally taught Ryan to hate his sexuality. And since sexuality cannot be separated from the self, we had taught Ryan to hate himself. So as he began to use drugs, he did so with a recklessness and a lack of caution for his own safety that was alarming to everyone who knew him.

The story doesn't end well, I'm sorry to say, although reconciliation takes place. Ryan ended up relapsing after 10 months of sobriety, and he died.

I don't have children; I don't have a Ryan in my life.

But, long ago, when I was a well-intentioned, if naive, student living in Manhattan for the first time, my girlfriend had two roommates, gay men who shared a bedroom in her apartment. They were very much a part of the club scene, and I was very much not, so I felt a little off balance with them. Still, they tried to be friendly to me, and I spent most nights at the apartment rather than in the dorms. One night, I got home before my girlfriend did, and was alone in the apartment. The buzzer rang three times in succession in quick panicked jags, and when I answered, I barely recognized the voice of one of the roommates, distorted by pain and weeping. I let him in, and met him on the stairwell. He had been beaten up on the street just for being gay, and, bleeding, sobbing staggered back into his home. I helped him clean himself up a bit, and, fortunately he wasn't seriously hurt. Physically, that is.

I was never quite as naive again.

The social stigmas we put on people for being different led to the cruelty my roommate suffered that night. They seeped into the souls of Ryan's parents, and led them to instill a death-watch beetle into their own son, so that, even as they loved him, they undermined his ability to find a path of self-acceptance, of integrity.

I may be wrong about a lot of issues theologically, but I am sure of this: God does not want us to sacrifice our sons and daughters, brothers and sisters, on an altar--any altar!--of our own piety. God wants each and every one of us to live into his or her full integrity and potential, and to be her best self, his best self, our best selves.

This too: When we arrogate to ourselves the prerogative of judging others' we take a very dangerous step. Because errors of judgment cost lives.

Just ask Linda Robertson.

The Man Behind the Curtain

Today's Times has a story that looks into the Archdiocese of Milwaukee during the tenure of now-Cardinal Timothy Dolan:

Files released by the Roman Catholic Archdiocese of Milwaukee on Monday reveal that in 2007, Cardinal Timothy F. Dolan, then the archbishop there, requested permission from the Vatican to move nearly $57 million into a cemetery trust fund to protect the assets from victims of clergy sexual abuse who were demanding compensation.

Cardinal Dolan, now the archbishop of New York, has emphatically denied seeking to shield church funds as the archbishop of Milwaukee from 2002 to 2009. He reiterated in a statement Monday that these were “old and discredited attacks.”

However, the files contain a 2007 letter to the Vatican in which he explains that by transferring the assets, “I foresee an improved protection of these funds from any legal claim and liability.” The Vatican approved the request in five weeks, the files show.

So, it's pretty clear that the Cardinal's statements on this point, at any rate, have been, shall we say, more ingenious than ingenuous.

Cardinal Dolan's deposition makes interesting reading, as he at first denies the existence of a "practice" of paying priests two incremental payments of $10,000 for not contesting the laicization process (pp. 85-88), only to be confronted with a memo describing the "practice" (using the word the Cardinal rejected) from the Vicar of Clergy for the Archdiocese (pp. 88-89).

The deposition itself depicts Dolan in a series of moods--working his self-deprecating charm with jokes about believing his "gut" because "it's substantial", piously interjecting religious sentiments at sometimes odd moments, sometimes angry (interestingly, not at Jeffrey Anderson, the lawyer who took the deposition, whose courtesy is notable throughout, but at a priest who gave Anderson a statement that he would have to return the money to the Archdiocese if he "didn't go quietly"). I think it fair to say that Dolan is profoundly uncomfortable being deposed (who can blame him; it's not how I'd recommend spending a vacation day), and unused to not being in control.

A significant moment occurs when Anderson and the Archdiocese's attorney break into a quarrel over whether Anderson spoke with a New York Times reporter during a break, Dolan asks "Do I have to continue? I feel very uncomfortable continuing. I don't know if I have the spirit or the attitude to go on." (Pp. 96-97) His discomfort at the flare-up is evident; some raw emotion has leached into what has been up until that moment a formidably polite exchange.

From the point of that rupture, the Archdiocese's lawyer tries (unsuccessfully, in my opinion) to ruffle Anderson, accusing he's trying "to smear the Church," suggesting he let another attorney ask questions, and observing that "I know that doesn't fit your ego." (Pp. 104-105) Dolan again displays discomfort in the wake of this jab, saying he'd rather not answer a pending question about the timeliness of the CDF's response to request for laicization, and rather plaintively asking "do I have to?" (Pp. 105-106) If that was a strategic decision, Dolan may have shown himself as canny as his admirers think him. Later documents display that Dolan was frustrated with the delays from Rome, though he tries to soft-pedal it.

The deposition isn't a knock out; my reflections on Dolan's testimony are not to say that he embarrassed himself or did poorly. That said, the Archdiocese has released an enormous amount of material here, and it will take time to digest and analyze.

Giving the Game Away

Torture advocate John Yoo, celebrating the end of the Voting Rights Act:

The Voting Rights Act resulted in an alliance between the NAACP and the Republican party of the 1980s and 1990s to pack minorities into voting districts. This had the effect of ensuring that minorities would be elected to Congress (which the NAACP liked), but diluted minority influence in regular politics by reducing their numbers in all other voting districts (which the Republican party liked). The end of the Voting Rights Act might have the long-term effect of making more congressional seats in the South more competitive and reducing the number of safe seats for members of the congressional black caucus.

Well, that's a candid admission of past practice, at any rate.

Here's an empirical analysis demonstrating that, contrary to the Court's decision, Congress had ample evidence supporting the formula. Remember Congress only had to have a rational basis to re-enact the statute because the VRA is enacted pursuant to an explicit constitutional provision--one that does not have an expiration date.

And how have the jurisdictions previously covered by the VRA pre-clearance requirements reacted to the decision? By immediately reviving voter suppression laws halted by the DOJ and courts under the VRA, of course.

How edifying. If you're John Yoo, that is. After all, he believes that the government has the power torture children, but not to implement a constitutional provision authorizing it to safeguard the right to vote.