Rules for the Rest of Us

What is it with this country’s moral scolds?

 

We see it over and over—Bill Bennett lecturing us on “values” while he’s losing more money than most of us make at Las Vegas’ gambling tables; Ted Haggard thundering against the “sin” of homosexuality while he’s paying a gay hooker; Paul Wolfowitz threatening to withhold World Bank dollars from countries with corrupt officials while he’s using public money to feather the nest of his live-in girlfriend. Our commander-in-chief, who routinely talks in terms of good and evil, had problems showing up for his own, stateside national guard duty, but evidently has no problem sending other people’s children off to fight in Iraq.

 

There would seem to be an epidemic of “do as I say, not as I do” going around.

 

The most recent high-profile victim of this epidemic is Judge Robert Bork. Bork, as many of you will recall, was nominated for a position on the Supreme Court, but failed to win confirmation when his radical opinions and truculent manner raised concerns about his judicial temperment. In the wake of that rebuff, he has gotten even more shrill, thundering against the “moral rot” of popular culture and advocating censorship, presumably to be imposed by people who agree with Robert Bork. He has written articles favoring stricter punishments for wrongdoers, and advocating “tort reform” restrictions on the right of injured parties to recover damages. In a 2002 article, Bork argued for a cap on “frivolous” claims and “excessive” damage awards. He has been particularly passionate in arguing against awards of punitive damages to injured plaintiffs.

 

Whatever the merits of these positions, they evidently are not meant to apply to the good Judge and his cronies. These are measures for the rest of us.

 

Recently, Judge Bork was one of twelve conservative law professors who asked permission to file an amicus or “friend of the court” brief urging clemency for convicted perjurer Scooter Libby. In its order granting the motion, the court dryly indicated that it expected to see these eminent conservatives “reaching out to other, more indigent, criminal defendents soon.” I wouldn’t hold my breath.    

 

Bork showed truly breathtaking chutzpah, however, following a fall as he was mounting the dias to make a speech at New York’s Yale Club. The good Judge has sued the Club for one million dollars plus—you guessed it—punitive damanges.

 

Perjury is a serious crime, as Judge Bork and other conservatives were quick to remind us when Bill Clinton was the perjurer.  If we should deny punitive damages to someone who lost a limb as a result of medical malpractice, why should a missing handrail entitle the Judge to receive them?  

 

As a self-styled constitutional “originalist,” Judge Bork has insisted upon the “neutral principles” of the law. Perhaps someone should remind him that a neutral principle is by definition one that applies to all persons who are similarly situated. To put that in language that even we peons understand, the same rules should apply to everyone.

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Politics and Justice

Partisan apologists for the Bush administration—joined by cynics of all political persuasions—shrug off recent disclosures about the firing of eight U.S. Attorneys. Just politics as usual, they yawn. Those discharged served “at the pleasure of the President,” and can be fired for no reason at all, so what’s the big deal?

 

Bud Cummins, one of the eight fired Prosecutors, recently answered that question. In an article in Salon, he acknowledged, “The president had an absolute right to fire us. We served at his pleasure.” But Cummins went on to explain the damage that is done when dismissal is based upon the prosecutor’s unwillingness to break the rules to “help” favored politicians.

 

“Put simply, the Department of Justice lives on credibility. When a federal prosecutor sends FBI agents to your brother’s house with an arrest warrant, demonstrating an intention to take away years of his liberty, separate him from his family, and take away his property, you and the public at large must have absolute confidence that the sole reason for those actions is that there was substantial evidence to suggest that your brother intentionally committed a federal crime. Everyone must have confidence that the prosecutor exercised his or her vast discretion in a neutral and nonpartisan pursuit of the facts and the law.”

 

We might draw an analogy to judicial selection. Everyone understands that the party in power can appoint federal judges whose judicial philosophy it favors. Would we then shrug our shoulders and say “politics as usual” if judicial appointments went to people who had promised in advance to rule on cases the way the administration wanted? Of course not. Choosing someone with a compatible judicial philosophy is one thing;  choosing someone who is corrupt is another.

 

Joseph D. Rich served in the Justice Department for 35 years, and was chief of the voting rights section from 1999 to 2005. As he recently wrote in the LA Times, he worked under Attorneys General with very different political philosophies, from “John Mitchell to Ed Meese to Janet Reno. Regardless of the administration, the political appointees had respect for the experience and judgment of longtime civil servants.” Not so the Bush Administration, which hired and fired solely on the basis of political loyalty.

 

“I personally was ordered to change performance evaluations of several attorneys under my supervision. I was told to include critical comments about those whose recommendations ran counter to the political will of the administration and to improve evaluations of those who were politically favored.”

 

The evidence we’ve seen so far suggests that prosecutors were dismissed because they refused to play politics—to bring bogus charges against Democrats, or stop investigating high-ranking Republicans. That’s bad enough—but what does that suggest about the U.S. Attorneys who were not fired? Their reputations have also been sullied, in most cases unfairly, because it is impossible not to wonder whether they kept their positions by “playing ball.”

 

When the White House trades justice for power, who can you trust?

 

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The Next President

The 2008 Presidential campaign is already in full gear. The debates have begun, and it won’t be long before we’re inundated with political commercials.  

 

It’s impossible to predict, at this stage, who the eventual nominees will be. For one thing, what people want in a president tends to be highly idiosyncratic. (My grandmother voted for John F. Kennedy because she loved his hair.)

 

Most of us want someone who agrees with us on the issues, but we also want someone we can trust to exercise good judgment when the unexpected occurs. Most want someone who is a strong leader, although we tend to disagree about what “strength” looks like. Until recently, most Americans wanted a President with “likability,” someone you’d like to have a beer with—but polls suggest that the experiences of the past six years have diminished the appeal of “regular guys” somewhat.

 

That experience has also shaped my own list of what I want in the next President.

   

I want someone who understands the context of Presidential action. Without understanding the foundations of America’s constitutional culture, an administration simply cannot operate effectively—whatever its goals. Lack of familiarity with  geopolitical realities threatens not just American, but global, security. Genuinely understanding the context in which he operates requires a President with an open mind, a curious nature, and high intelligence.

 

I also want someone who has “the vision thing.” As Theodore Hesburgh once said “You can’t blow an uncertain trumpet.” But vision is not stubborness. America needs leaders who know the difference.

 

I want someone with superior communication skills—the ability to bring a divided people together, the ability to inspire hope rather than fear, and the ability to listen as well as talk.

 

Perhaps most of all, I am looking for authenticity. Authenticity is the extent to which people are true to their real selves, the extent to which they refuse to play a role in order to achieve political success. Authenticity doesn’t mean acting without any strategic calculus—sane people respond appropriately to their environments, and to the incentives and disincentives built in to those environments. But for authentic people, there is a line that doesn’t get crossed.

 

Authentic people are emotionally mature, they have the ability to laugh at themselves, they listen to dissenting voices without becoming defensive, and they can distinguish between policy disputes and personal attacks. They learn from their mistakes, and they recognize the limits of their own knowledge. Emotional maturity is not an absence of ego—we’d never get national leadership if that were a condition of candidacy! It is instead the possession of a particular kind of ego, a particular kind of inner security that allows recognition of one’s own limits.

 

I want someone who understands accountability. There’s a world of difference between Truman’s “The buck stops here” and Bush’s “I’m the decider.”  The first says “I accept responsibility.” The second says “I’m the boss.”

 

As Abraham Lincoln said “If you want to test a man’s character, give him power.”

 

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Duke and Prosecutorial Hazard

The recent dismissals of all charges brought against the Duke lacrosse players—accompanied by condemnations of the prosecutor who originally brought the charges—reminded me of something said in 1940 by Supreme Court Justice Robert H. Jackson, who later presided over the Nuremberg trials.

 

Jackson said “The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous…The citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law, and not factional purposes.”

 

Whatever other lessons we may learn from the sorry spectacle at Duke—lessons about race, privilege and resentment, or the ease of playing to an ever-more sensation-seeking media—surely the importance of prosecutorial integrity is the most important. Prosecutors are officers of the court; they are lawyers for “the people.” If they do not place their duty to the truth above personal or partisan considerations, they can do enormous damage both to the lives of individuals and to public trust in our institutions.

 

It isn’t only Duke. In Wisconsin, a Republican U.S. Attorney launched a corruption case against an obscure state bureaucrat, and even got a conviction. It was an election year, and not surprisingly, the case was featured prominently in attack ads against the Democratic governor. After the election, the appeals court threw the case out.  The opinion, written by (exceedingly conservative) Judge Easterbrook, called the evidence "beyond thin" and the case “preposterous.”

 

The Wisconsin case, even more than the travesty at Duke, provides a telling example of why the current Congressional investigation into the Justice Department’s firing of eight federal prosecutors is so important.

 

The previous Congress ignored numerous warning signs about politicization of the Justice Department—from the hiring of attorneys with few qualifications and little experience, to the departure of career lawyers who had served both Republican and Democratic administrations. Seasoned career lawyers were overruled so that the department could reverse prior policy in voting rights cases. The list goes on.

 

Then there is the curious “coincidence” that several of the fired prosecutors came from battleground states that will be critical in the 2008 election: New Mexico, Nevada, Michigan, Washington and Arkansas.

 

It is easy for citizens numbed by the constant drumbeat of accusations and counteraccusations and disgusted by the political gameplaying and outright corruption of the last several years to shrug off the situation at the Justice department as one more fight between equally unpleasant political insiders. But that would be a mistake, because we all have an important stake in the independence and integrity of the men and women entrusted, literally, with life and death decisions.

 

Once we lose confidence in the probity of those officers of the court, once we suspect that they have based the decision to pursue (or overlook) behaviors on political calculation rather than on the evidence, we will have lost what John Adams memorably called “a government of laws, not men.” We really will have lost America.  

 

 

Fits and Starts

In last month’s column, I wrote about an unexpected victory for equal rights—the defeat, or at least the temporary derailing, of a same-sex marriage ban in very red Indiana. Since then, at least two other states have enacted civil union statutes, and polls suggest that the saliency of the issue and its utility in energizing the GOP base have declined.

 

But then there is the other side of the coin, the episodes that remind us that progress does not occur in a straight line, but in what my mother used to call “fits and starts.”

 

In Richmond, Indiana, at virtually the same time our legislature was showing signs of an emerging sanity, a young man named Joe Augustine was beaten with a rock and left with a fractured skull as he was leaving a rehearsal of the Richmond Civic Theater’s production of “The Laramie Project.”  That play, as most readers of this column probably know, is based upon the horrific beating and death of Matthew Shepard.

 

As I write this, there has not been confirmation that this was a hate crime, although it seems unlikely that the choice of victim was merely coincidental. And even in Richmond, in the wake of this savage beating, the news is not all terrible. Townspeople have rallied to support the young man and his family. Businesses have put up signs; the community held a fundraiser to help with medical bills. And the rest of the cast—in the grand old tradition of “the show must go on”—continued with the play’s production.

 

Two steps forward, one step back. That’s the way humans progress. But we do progress. Over the nine years that I have taught university undergraduates, I have watched a sea change in their attitudes toward their gay classmaters. Most of today’s college students literally do not understand what the fuss is all about. In contrast to their parents’ generation, homosexuality—like sexuality in general—does not make them uncomfortable. Most have gay friends, watch “out” entertainers, and tend to attribute anti-gay bias to ignorance at best or emotional problems at worst.

 

Much of this attitude change can be directly traced to the “coming out” movement, and the familiarity with gay friends and neighbors that has ensued. One of the persistent mysteries of human behavior is our tendency to fear that which is different and unknown, despite ample evidence that such fears can be—and often are—pathological.  In a healthy society, we would divert the energy and resources being expended to deprive gay people of their civil rights to an effort to identify and help the angry and dangerous who walk among us.

 

Of course, in a healthy society, we would also divert the resources being flushed down the toilet in a failed drug war to public health measures aimed at helping drug abusers quit. In a healthy society, we would not spend trillions of dollars and waste thousands of young lives fighting a war of choice in Iraq. I could go on and on, but there is little point. I often wonder whether the people who are so angry at the prospect that two men or two women might create a loving and supportive family are equally upset when children go to bed hungry or abused, when we cannot find the public resources to improve our schools or to pay our police and fire personnel adequately. Is their “morality” equally offended when our brave young soldiers come home from a fool’s errand to face poor or indifferent medical care? And speaking of medical care, where are these guardians of public morality when we discuss the 47 million Americans who are uninsured? Isn’t that a sufficiently moral issue?

 

Fits and starts. It would be nice if we were beginning to recover from the fits and ready to start addressing the genuinely important conditions of our common culture.        

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