"Borking." Again with the "Borking."

Joe Nocera, alas, has fallen into the trap of assuming the conservative founding grudge story is true:

The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.

The argument rests on two premises, both fundamentally false. The first is that Bork's rejection by the Senate marked an escalation of the political warfare over the judiciary. The seconds, as Nocera writes, is that "[n]or was Bork himself an extremist. He was a strongly opinionated, somewhat pugnacious, deeply conservative judge," and that, under the pre-existing mores of the Senate, he was entitled to confirmation. Both premises are so demonstrably false as to draw into question Nocera's competence.

First, the rejection of Bork's nomination took place 17 years after the far more dramatic effort on the part of the House Republicans to impeach sitting Justice a William O. Douglas over his off the bench writings (an article on folk music, and a book, Points of Rebellion, urging reform as the best means to avert social crisis, and another article, inoffensive in itself, but published in a risqué magazine), his votes in favor of free speech, and his personal life--Douglas was married to a much younger woman, and had been married three earlier times. (The source linked here--from Wikipedia--is unfortunately the best of a bad lot of online sources about WOD, and, if anything, is far too charitable to then-Rep. Gerald Ford's leadership of this attempt, which most accounts acknowledge was a political effort to break the liberal bloc of the Court). As my old law professor Henry Monaghan--a Bork supporter who testified on his behalf--acknowledged in a 1988 article in the Harvard Law Review "all the relevant historical and textual sources support the Senate's power when and if it sees fit to assert its vision of the public good against that of the President." By contrast, a federal judge is to be impeached only for "high crimes and misdemeanors," a problem Ford elided by redefining the constitutional text to mean nothing; as he said on the House floor, "[t]he only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history."

To say that the Bork rejection began the hostilities is, to put it mildly, facetious.

As to whether or not Bork was entitled to a seat on the Court, Monaghan's article is clear that the Senate had plenary power to reject him; as to the question whether it correctly deemed him to be too extreme, let me quote an older post:

Bork was rejected--to my mind quite rightly--because of his philosophy. Not because he was conservative--William H. Rehnquist had just been elevated to Chief Justice, after all--but because his conservatism led him to discard whole sections of the Constitution based on his personal ideological committments.

So, for example, Judge Bork contended that the Ninth Amendment, reading that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" could not be a source of rights which were enforceable, and that only those explicitly enumerated in the text could be. He described its meaning in The Tempting of America, as indeterminate as an "ink blot", and claimed that the judiciary should simply ignore the Amendment, which would give [no] effect to the intention of the Framers. As Bork himself said, "the only recourse for a judge is to refrain from inventing meanings and ignore the provision, as was the practice until recently." (“Interpretation of the Constitution,” 1984 Justice Lester W. Roth Lecture, University of So. California, October 25, 1984).

However, the Framers had originally not included a Bill of Rights because, as recounted in The Federalist Papers, the enumeration of rights might be used as a means to claim that those not named did not exist. Federalist No. 84. Madison addressed this issue in explaining his addition of the text that became the Ninth Amendment:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution." (3 Annals of America at 354-363).

So the text of the Constitution, and Bork's own claimed ultimate goal of interpretation--effecting the actual original intent of the framers--both demonstrably preclude his reading of the Ninth Amendment out of the Constitution. nevertheless, for his own policy-based reasons, Bork argues for such a reading-out. As an equation, if T means text, for Bork T=0, absent any reference to original intent, structure, or any other ground.

Similarly, with the First Amendment, Bork argued that the scope of speech protected by the First Amendment should be limited to purely political speech, despite the text of the Amendment which carries no such limitation, providing only that "Congress shall make no law ....abridging the freedom of speech." (Bork's article, "Neutral Principles and Some First Amendment Problems" is published at 47 Indiana L.J. 1 (1971)). Again, Bork's resort to the intention of the Framers over the text was unconvincing to the say the least. Because of the lateness of the addition to the Bill of Rights to the Constitution, there are very limited legislative history materials to use in interpreting the text, but neither Madison's notes, nor those of the other members of the Constitutional Convention support Bork's reading of the Amendment. Nor does the early practice; the Supreme Court in Permoli v. First Municipality, City of New Orleans, 44 U.S. 589 (1844) and United States v. Cruikshank, 92 U.S. 542 (1875) twice held that the effect of the First Amendment was to completely disable Congress in dealing with regulation of speech and religion. (For more detail, see my First Amendment, First Principles at pp. 20-23).

Bork also described the Civil Rights Act of 1964 as enacting a "principle of unsurpassed ugliness" in forcing white operators of public accommodation to serve African Americans. "Civil Rights—A Challenge," The New Republic, August 31, 1963. The emotive language used by Bork was deemed by many on the left to justify Senator Kennedy's assertion that segregation at lunch counters would be a feature of "Robert Bork's America." All of these issues, and Bork's role in the "Saturday Night Massacre" in which he was the third occupant of the office of Attorney General because he alone was willing to back then-President Nixon's position on executive privilege, cost him support. Bork's 1987 claim that he construed the law and the Constitution in each of these areas and did not argue his personal beliefs is belied by his use of emotive language and in many areas his subsequent insistence that his views are not merely constitutionally imperative but morally so. See Slouching Toward Gomorrah (1996) and his contributions to A Country I Do Not Recognize: The Legal Assault On American Values (2005).

I point all of these out because the notion that Robert Bork fell because of his conservatism distorts the history in a manner that suggests that mere political disagreement is enough to torpedo a judicial nomination. In fact, Judge Bork's interpretations of the Constitution were not merely substantively "out of the mainstream"; they were not supported by the very values that he claimed mandated them, and they would erase centuries of constitutional law in favor of a broad power to the Government over what Americans thought and did in their private lives, in the name of morality.

I stand by that analysis; I think the Senate did its job in 1987, and that Nocera failed to do his this week

The Kids are Alright

So apparently, some of the businesses neighboring Zuccotti Park are finding Occupy Wall Street to be a drag. A few specified instances you can sympathize with--local restaurants who have had toilet paper and/or soap stolen, one business who had a sink broken), but I have to say that a lot of it comes off as the whining of the privileged. A mother (a psychologist no less), who is concerned that "she had to shield her toddler from the sight of women at the park dancing topless"? Like that memory'll haunt the poor little tyke as a childhood trauma? Or the fact that "[t]oddlers have been roused from sleep just after bedtime by chanting and pounding drums"? I'm sure it's an irritant, but you're living in a business district; New York City doesn't shut down by toddler bed time. And the notion that the Park (a concrete oval dotted with benches and food trucks) is a green refuge is pretty laughable.

I walk by Zuccotti Park twice a day on my way to and from work, and, I admit it, I've been curious enough to go in a couple times, to try to see what the crowd is like, what they're doing. They're sweeping up after each other, distributing warm clothes and sleeping bags, sharing books ("the People's Library"), and even barbering--I saw one man giving another a classic old-school shave). They're friendly, and eager to talk. Even though I'm all conservatively suited up, nobody has assumed I'm the Enemy--in fact, there are people in business suits in the park. I've been amused by some of the signs--"Ayn Rand was a Sociopath" got a grin from me, and a "second the motion!"--and touched by some of the stories. There are graduates who can't get work, and are lumbered with undischargeable debt, workers who have been laid off, and Americans, young and not-young, who have seen policy emphasize saving the powerful entities that got us into this mess while failing to act to ameliorate the human suffering caused by their recklessness. I saw discussions beginning, and a sluggish media slowly beginning to take notice

The First Amendment is in full flower at Zuccotti Park, and that's a good thing.

So, What's New By You?

Me, I got married last Saturday, a week ago today. The rain held off so that we could have our ceremony outside. Our priest did a wonderful job, including a sermon that began: "Here's the thing about them [that'd be me and my wife]: They're not normal." Good times.

Seriously, it was a wonderful day, and, even though La Caterina and I have been together for over five years it does feel different for me now. And better.

And friends--some of whom I hadn't seen for a criminally long tine--flicker in and out, like we're doing some metaphysical version of the eightsome reel. I'm struck by how fortunate I have been in my friendships.

The rain did come, of course, and that meant we were all indoors, and had no room for a dance floor. (Mind you, as my specialty is the "Gopher Dance", that may have been a mercy). In keeping with my current Leonard Cohen kick, I had hoped to dance with LaC to this, but in a very real way, we already are:

The Holy and the Broken Hallelujah

So for several months now--since a friend of mine referenced it online, as a matter of fact--a particular song has been rattling around in my brain, inviting me to embrace its complexities.

I refer to Leonard Cohen's classic song "Hallelujah." One of the great things about the song is that there is no one correct version of it--the lyrics vary wildly in order of the verses and in content. (This is true, by the way, whether Cohen himself is singing it, or another musician is covering it. In fact, covers tend to be more standardized--John Cale, Jeff Buckley and Rufus Wainwright all use pretty closely similar versions).

Here is, for example, what is posted on YouTube as the "original studio version":



Note the verse:

You say I took the name in vain
I don't even know the name
But if I did, well really, what's it to you?
There's a blaze of light in every word
It doesn't matter which you heard
The holy or the broken Hallelujah

Won't be hearing that again.

Ok, let's go to John Cale:



(Quite possibly my own favorite version, though the next contender is close)

And, just for good measure, a really good late Cohen performance:



So, we have a verse introducing the story of David, singing before the Lord--but with a bitter edge. Then, the story of David and Bathsheba--"You saw her bathing on the roof/Her beauty in the moonlight overthrew you." And, just to complicate matters more, the story blends with that of Samson and Delilah--"she tied you to a kitchen chair, she broke your throne and she cut your hair". Bathsheba may have a verse herself--"I've seen your flag on the marble arch/but love is not a victory march," sometimes feels like a wry observation from a woman whose preferences were not, shall we say, consulted.

The other verses, in counterpart, speak of the bitterness of betrayal, the seeming meaninglessness life and love itself ("maybe there's a God above/but all I've ever learned from love/is how to shoot at someone who outdrew you"") can present at times, and our own crippling inability to "only connect." And throughout, the narrator refuses to accept the stereotype of an easy festal shout of "Hallellujah!" Life hurts, bucko. You may give that shout--but not easily, not without the experience of desolation that the spiritual life doesn't immunize us from.

The biblical references frame the song--in some versions they follow each other, in others not. They invoke Scripture but not in a simple re-telling--the scriptural story goes back and forth with a narrator who (as the verses quoted above shows, and ) is pretty jaundiced about life, and, as this and other verses show, about love--sacred at times (the "Holy Dove was moving too"and yet so transitory. But then what a finish--in the versions that use it:

I've done my best,
it wasn't much.
I couldn't feel
so I learned to touch.
I've told the truth,
I didn't come here just to fool you
And though it seems it all went wrong,
I'll stand before the Lord of Song
with nothing on my tongue but Hallellujah

George Herbert has gotta love that. Seriously, beat this as a theological rumination--it's a testament of a soul battered, not broken, hurt by life but choosing to love, and appearing before the Great Mystery with truth and a kind of hell-busted joy.

A Decade Later

Everyone is, reasonably enough, looking back on September 11, 2001. Decades say something to us, in our desire to track events, and measure lives. My own experience was more opera bouffe than anything else, but here it is.

I was working, at that time, at a small Long Island law firm, and we had a office in the WTC. Fortunately, there was a whole-office meeting out in Nassau County, so that nobody reported to our Trade Center offices that day. Everyone was at the Long Island office.

Except me. But I was not at the WTC either; I had just completed a two day meeting with clients in DC, in which we began laying the groundwork for the litigation in which we challenged the Communications Decency Act's application of "local community standards" to judge the content of material posted online, and, especially, the Government's then-extant strategy of having government employees access websites from conservative jurisdictions, and making the artist/authors stand trial in that jurisdiction, under its standards, a policy under which the most conservative community essentially set the limits for what was permissible throughout the United States.

So, I was at the then-relatively-newly renamed Reagan National Airport, about to fly home. Did you know that RNA is quite close to the Pentagon? Neither did I, then.

About to board my flight, I saw the first plane strike the Tower. I thought it was an accident--an unbelievable accident. I even called home, and left a message asking if I had actually seen that. Then, a woman in an airline uniform ran out from behind the baggage area waving her arms and yelling "GET OUT GET OUT GET OUT!"

As far as I could tell, that was the evacuation protocol. Straightforward, at least.

I went to the main concourse. That's when I saw tape of the second plane, and realized this was big. And deliberate. Another guy, about my age now, maybe a few years older, said to me, "Damn. We'd better try to get a train before they get closed down, too." We walked back to the abandoned baggage area, got our bags, and began to head back to the concourse. All of the people in the airport were out on the tarmac, trying to work non-functioning cell phones. A low, dense black smoke rolled toward us--word of mouth had it that the airport had been bombed. And so, with no clear idea where we were headed, we walked across the grass, down a hill, across a highway, and then into the nearest town. My companion was taken ill on the way down-started feeling his chest tighten--so I helped with his bag. And a bunch of Americans streamed into an American town like refugees.

A nearby hotel (a Marriott) let us in, and started handing out water. My companion (forgot his name after all these years) was taken to a doctor, and I was on my own. I hate to admit it, but I immediately flashed on the Flashman novels, especially Flashy's dicta that if you look like you belong, people will assume you do, and carry yourself with a high hand. Rather than fold up my best suit for the trip home, I was wearing it. I closed my shirt collar, jacked up my tie, and hid my bag behind a chair. The, walking in a swift but unhurried manner into the manager's office, with a cool nod to the secretary, I closed the door behind me and made calls--I couldn't reach my parents, but I did reach my client's Executive Director, and she and her husband offered me a bed for as long as needed one.

From there, it became simple-- a short ride on the Metro--up again after only an hour or so, a walk from the station, and a refuge.

I had it incredibly easy.

My friends didn't all have it so easy. I knew several people, good friends, who had damned close calls that day, and one former work acquaintance who died. My silly little experience was nothing like that--yet I got a taste of something most Americans haven't--a loss of security at the most basic level. I understand the anger the attacks caused at a visceral level, because I experienced first hand the "this cannot be bloody happening" feeling that underlines it so often. Ten years ago, we learned what it was like to be vulnerable. We also learned that there were heroes among us--the passengers of Flight 93, the firefighters who ran in, the police officers who shepherded people to safety, or died trying. The clergy at St. Paul's and Trinity, and St. Peter's, who provided succor and hope. And we saw good in each other--the testy mayor rose to the occasion, and President Bush (not a favorite of mine, shall we say) gave a speech in which he refused the poisonous bait Bin Laden proffered, and rejected the framing of the attack as one done by Islam as a whole against the West, thus denying Bin Laden his dream of a clash of civilizations.

A lot went wrong after that, and history will bring its usual microscope. And so it should. But for today, tomorrow really, because I'm posting this the night before the anniversary, we should, I think focus, on not just our losses, all the losses worldwide from this terrible conflict, but on those who have chosen to strive to redeem the mess--those of all and no faith who have tried to bring peace, to, each in his or her own way, still the ancient brutal dream of Attila the Hun.

As for us, who benefitted from their services, or from luck, or both? We're still here. Peace be upon us all.

On Purity Trolls of the Left

From DKos:

I hate to accuse President Obama of being an Uncle Tom, but like Uncle Tom he counsels accepting our system of enslavement to the rich and powerful. I mean this literally, based on the book that, as Lincoln said, started the War to Free the Slaves. Obama began his Presidency being compared to Lincoln, because he supposedly appointed rivals to his cabinet. If he wanted real rivals, he would have appointed Krugman, Stiglitz, Trumka and Warren, not Summers, Geithner, Donovan, and Clinton. Obama has not shown the determination of Lincoln to restore the union, whatever the cost. If Obama had been president in 1861, he would have negotiated an end to war based on a promise from the slavers to treat their slaves better.

This framing is simply racist. Period. It's also deeply stupid, and smug to boot. And plug-ignorant, as well. (Did the author even read Stowe?)

But more to the point, this sort of thing helps explain why the "professional Left" doesn't find a lot of love in the Obama Administration. Because this is just today's example of this sort of insane nonsense--and check out the comments. Or check out Firedoglake . Or any post by Glenn Greenwald (seriously, I don't even have to pick a specific post; they're all over the top Obama bashing--and in comments and on Twitter GG consistently refers to Obama as "Dear Leader" and his supporters as "cultists").

And then compare this unfortunately named but understandably frustrated response.

Even when they have a point, who can hear them through the hate?

A Commercial Announcement: "Command and Coercion,"

or what I've been doing instead of blogging. This article is, I hope, a section in my projected second book, in which I'll be exploring the relationship of Church and State, not from the perspective of what the Supreme Court has said about it (too muddled with inconsistent and conflicting rationales and results). Rather, I'll be looking at the harm done to religious bodies by efforts to exercise secular-style power.

This section examines the sex abuse crisis in the Roman Catholic Church and the Church's response as in the light of John Henry Newman's views on the Church's "regal function" and the clerical immunity from secular criminal law fought for by Thomas Becket. As this is a draft, a "pre-print," comments especially welcome.