Gaming the System

Two judicial candidates and Indiana Right to Life recently sued to overturn long-established Indiana rules of judicial conduct. Those rules prohibit judges from answering surveys from advocacy groups about matters likely to come before the court. In the case of Right to Life, the surveys ask judicial candidates their views on abortion and euthanasia, arguing that voters have a right to know where potential judges stand.

This is like choosing football referees by asking which teams they favor.

To belabor the sporting analogy, our legal system is set up with the expectation that the “teams”—the plaintiff and defendant—will vigorously compete in court. Judges and juries, however, are expected to be objective referees. Their job is not to root for one side or the other, but to apply the rules, or laws, fairly. Good referees are chosen for their knowledge of the rules, their ability to recognize instances when those rules have been broken, and to call them like they see them.

Biased judicial referees can apply the rules in ways that game the system. There has been a great deal of concern in the legal community about the imposition of ideological  “litmus tests” for appointees to the federal bench, especially to the Supreme Court. The Bush Administration has consistently preferred judicial candidates who favor authority, who believe in executive supremacy (sometimes called the theory of the “unitary executive”) and opt for order over justice. With the addition of Justices Roberts and Alito, especially, the Court has significantly limited the ability of ordinary citizens to complain about actions of either government or big business.

Two recent examples may illustrate the point.

Last year, the Court handed down a relatively obscure ruling in Hein v. Freedom from Religion Foundation. The case was a challenge to the constitutionality of portions of the President’s Faith-Based Initiative. Applicable precedents—the existing rules of the game—strongly favored the plaintiffs.  But the Court didn’t rule whether the program was constitutional or not; instead, it dramatically tightened a doctrine called “taxpayer standing” and ruled that the plaintiffs, being mere taxpayers, had no right to complain. If you’re not allowed to suit up or take the field, it doesn’t matter how well you can play.

Or take the case of Lily Ledbetter, the female Goodyear employee who discovered, after 19 years on the job, that she was making substantially less than male employees doing the same work. The company closely guarded its payroll information, making it nearly impossible for workers to discover relative pay scales. Nevertheless, the Court held that the applicable statute gives 180 days from the date of “the violation” to sue, and “the violation” occurred when Lily was first paid. (The dissenters would have upheld the lower court ruling in Lily’s favor, and would have considered each paycheck a new violation for purposes of the statute.)

That’s how rules get applied when one of the teams gets to pick the referee. I don’t think we want to change Indiana’s rules of judicial conduct.   

 

 

 

 

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Wages of Incompetence

The heated debate over whether the Administration lied to take us to war in Iraq or was the victim of its own mismanaged intelligence has cooled somewhat, as worries about the economy have heated up. But the two are connected; Iraq is a big part of our economic woes.

Joseph Stiglitz, a Nobel Prize-winning economist who used to be vice-president of the World Bank, recently connected those dots in a talk to a British think-tank, Chatham House.

According to Stiglitz, not only has the Iraq war already cost the United States between 50-60 times more than the Administration originally predicted, it has been a major contributor to the sub-prime banking crisis now threatening the world economy. The war has cost American taxpayers nearly 3.3 trillion dollars—not 50 billion, as the Administration predicted in 2003, and not the 500 billion they currently admit to. (According to Stiglitz, the 500 billion dollar figure “massively understates things such as the medical and welfare costs of US military servicemen.”)

Stiglitz went on to explain why spending on the Iraq war—now the second-most expensive in U.S. history after World War II and the second-longest after Vietnam—has been a major, if hidden, cause of the current credit crunch. “Because the U.S. central bank responded to the massive financial drain of the war by flooding the American economy with cheap credit. The regulators were looking the other way and money was being lent to anybody this side of a life-support system," he said. That led to a housing bubble and a consumption boom. Now the fallout is plunging the U.S. economy into recession and saddling the next president with the biggest budget deficit in history.

So in addition to all the places we could have spent that money—repairing our deteriorating infrastructure, improving our public schools, public transportation and neglected parks…we’ve thrown the American economy into a tailspin.

And what do we have to show for this massive hemorrhaging of green? What “gain” have we purchased with our pain?

We invaded a country that wasn’t responsible for the tragedy of 9/11, rather than keeping our focus on the real culprits in order to bring them to justice. We further destabilized one of the world’s least stable areas. We created an opening for Al Qaida in Iraq, where they had previously been unwelcome. We damaged our standing in the world, making it much more difficult to get the co-operation from other countries that we need in order to protect America from international terrorism. Worst of all, we’ve lost over four thousand young Americans, maimed 128,000 more, and killed untold thousands of Iraqis.

But the news isn’t bleak for everyone. According to a recent investigation by the Chicago Tribune, war profiteers are doing quite well, thank you. Recently unsealed court records detail kickbacks, graft and massive fraud that “endangered the health of American soldiers even as it lined contractors pockets.”

Where was Congress while this was going on? And the American people—where were we?

 

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Foul Play

By the time this column hits newsstands, readers will have heard more than most of them ever wanted to hear about Barack Obama’s pastor, Jeremy Wright. So I apologize in advance for belaboring the subject, but I remain steamed.

Why, you may ask, is a white Jewish grandmother (a demographic to which Hillary considers herself entitled) brooding over the coverage of an African-American Christian pastor? I’ll tell you: because I come from a tradition that is all about Justice. On matters of faith, any three Jews will hold at least five different beliefs; we’ll argue into the wee hours about politics, public policy and whether nice Jewish boys should attend medical school or law school. But most of us imbibed the Talmudic injunction “Justice, justice shalt thou pursue” with our mothers’ milk. And the brouhaha over Reverend Wright has been unjust on so many levels.

First—and most obvious—is the highly selective nature of the clips being shown endlessly on cable television. As many columnists and reporters have pointed out (notably, Anderson Cooper on his own blog), all of the Reverend’s hundreds of sermons are digitally available. Very few of them contained inflammatory passages. Indeed, even the statements that have aroused so much anger don’t sound nearly so incendiary when shown in context, as part of the larger message. (I shudder to think how I would sound—not being the most temperate person around—if someone selected the least reasonable statements I had made and presented them as representative.)

Second, there are the pious statements from people who were shocked, shocked, that Obama didn’t leave his church. How could he stay if he really disagreed with portions of his pastor’s sermons. Oh, yeah—as a Catholic friend of mine wondered aloud, how many of those people are Catholics who left the Church over the predatory priest scandals? As a student of mine remarked, “I’m a conservative Christian. I don’t agree with everything Pat Robertson says. But I agree with a lot, and I don’t stop being a Conservative Baptist just because there’s stuff I disagree with.”

Third—and perhaps most telling—where is all the righteous indignation about the homophobes and anti-Semites whose endorsement John McCain has actively sought?  Whatever the Reverend Wright’s positions on responsibility for 9-11 or AIDS in the African-American community, he has, according to the Washington Blade, “largely supported gay rights and welcomed gays into his 8,000-member congregation.” According to Equality Illinois, “Trinity [Wright’s congregation] has been among the strongest supporters of LGBT rights.” The church has a gay and lesbian singles ministry, and Wright has spoken up in defense of gay pastors.

Contrast that with pronouncements by Televangelist John Hagee, the virulently anti-gay, anti-Jewish and anti-Catholic Religious Right figure whose endorsement was actively sought and publicly welcomed by John McCain. (Hagee calls the Catholic Church “the great whore.”) Or with McCain’s acceptance of support from radical right leader Janet Folger, who—among other charming sentiments—has declared that “Anita Bryant was right.” Or the Reverend Ron Parsley, who McCain calls his “personal spiritual advisor.”  According to People for the American Way, “You won’t hear Parsley rail against Catholics, but you will hear him rail against gays, abortion, Islam, judges, and People for the American Way.” In Ohio, Parsley has built a political machine of “Patriot Pastors” who turn their churches into get-out-the-vote campaigns during elections—undoubtedly the “spiritual” element that most appeals to Mr. McCain.

If we are going to obsess endlessly over Rev. Wright’s less elevated pronouncements,  we might expect the media to give equal time to the considerably more florid and consistent positions of these “spiritual advisors.” If you have somehow failed to notice prominent reporting about the positions taken by Mr. McCain’s spiritual gurus, however, you aren’t alone—The Carpetbagger Report ran a Lexis-Nexis search to see just how many stand-alone articles were written about “McCain’s outreach to a bigoted and nutty televangelist” in the Washington Post, New York Times, Los Angeles Times, Boston Globe, Chicago Tribune, USA Today and the Wall Street Journal. The total? Zero.

Will this focus on handpicked passages from Reverend Wright’s sermons sink Barack Obama? The answer is no. If Barack Obama loses, Reverend Wright may be the excuse; he won’t be the reason.

Obama has frequently said that this election is a choice between the past and the future. The use of Reverend Wright’s sermons to stir up racial resentments is consistent with the politics of the past. It remains to be seen whether Americans will vote for a different, fairer future.

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Protecting the Idea We Hate

I hate to beat up on the United Nations. I’m one of those “can’t we all get along” people who would just like to hold hands (metaphorically speaking) with people everywhere while singing kumbaya.  Plus, our increasingly interrelated world desperately needs an effective international body. The problem is, the U.N. keeps demonstrating that it isn’t up to the job.

Most Americans know that the Constitution’s First Amendment protects free speech—“free speech” being shorthand for the right to access information, form our own opinions and express those opinions verbally or symbolically. Fewer of us know that the Universal Declaration of Human Rights—passed by the United Nations sixty years ago—also protected freedom of opinion and expression.

Passage of the Universal Declaration, toothless as it admittedly was and is, was a high point in the history of the United Nations. The Universal Declaration might be merely aspirational, but it identified basic rights that all nations agreed were the due of all human persons. Since its passage, however, the U.N. has periodically passed resolutions or taken other actions that demonstrate how few of its members understand what “freedom of opinion and expression” means.

Recently, it happened again. By a vote of 21 to 10, the U.N. Human Rights Council endorsed a document prepared by the Organization of the Islamic Conference, calling for members to pass laws prohibiting the expression of “racist and xenophobic” ideas and “religious defamation.” The document expressed “deep concern” over the  identification of Islam with terrorism, a concern prompted by the Danish cartoons, among other provocations. Saudi Arabia was a strong proponent of the measure; a Saudi delegate told the council that “no culture should incite religious hatred by attacking sacred teachings.”

(I must have missed the news that the Saudis are closing down their notoriously anti-Western, anti-Jewish madrassas. As one blogger put it, “I’ll take lectures about freedom from the Saudis right after I take lessons in logic from Bill O’Reilly.)

The problem with this resolution, of course, goes well beyond the hypocrisy of the nations that proposed it. It mirrors a similar debate that Americans have been having, between self-appointed guardians of civility and people who express unpopular or hateful opinions. Most of us, I suspect, cringe when someone uses a racial or religious insult, or otherwise denigrates people based upon their race, religion or gender. But in a free society, the appropriate response is education, not suppression. It is more and better speech—not censorship.

Well-intentioned as some of these efforts to avoid hurt feelings may be, what they signal is a profound lack of respect for the rights of others to hold wrong opinions, or opinions contrary to our own. Even if we could agree upon what constitutes “defamation”—is it disagreement? Lack of proper reverence? Adherence to a different point of view?—protection of dissent and disagreement is essential to the search for truth.    

A government empowered to decide what ideas are acceptable is much more dangerous than even the most despicable idea.

 

The Wages of Incompetence

The heated debate over whether the Administration lied to take us to war in Iraq or was the victim of its own mismanaged intelligence has cooled somewhat, as worries about the economy have heated up. But the two are connected; Iraq is a big part of our economic woes.

Joseph Stiglitz, a Nobel Prize-winning economist who used to be vice-president of the World Bank, recently connected those dots in a talk to a British think-tank, Chatham House.

According to Stiglitz, not only has the Iraq war already cost the United States between 50-60 times more than the Administration originally predicted, it has been a major contributor to the sub-prime banking crisis now threatening the world economy. The war has cost American taxpayers nearly 3.3 trillion dollars—not 50 billion, as the Administration predicted in 2003, and not the 500 billion they currently admit to. (According to Stiglitz, the 500 billion dollar figure “massively understates things such as the medical and welfare costs of US military servicemen.”)

Stiglitz went on to explain why spending on the Iraq war—now the second-most expensive in U.S. history after World War II and the second-longest after Vietnam—has been a major, if hidden, cause of the current credit crunch. “Because the U.S. central bank responded to the massive financial drain of the war by flooding the American economy with cheap credit. The regulators were looking the other way and money was being lent to anybody this side of a life-support system," he said. That led to a housing bubble and a consumption boom. Now the fallout is plunging the U.S. economy into recession and saddling the next president with the biggest budget deficit in history.

So in addition to all the places we could have spent that money—repairing our deteriorating infrastructure, improving our public schools, public transportation and neglected parks…we’ve thrown the American economy into a tailspin.

And what do we have to show for this massive hemorrhaging of green? What “gain” have we purchased with our pain?

We invaded a country that wasn’t responsible for the tragedy of 9/11, rather than keeping our focus on the real culprits in order to bring them to justice. We further destabilized one of the world’s least stable areas. We created an opening for Al Qaida in Iraq, where they had previously been unwelcome. We damaged our standing in the world, making it much more difficult to get the co-operation from other countries that we need in order to protect America from international terrorism. Worst of all, we’ve lost over four thousand young Americans, maimed 128,000 more, and killed untold thousands of Iraqis.

But the news isn’t bleak for everyone. According to a recent investigation by the Chicago Tribune, war profiteers are doing quite well, thank you. Recently unsealed court records detail kickbacks, graft and massive fraud that “endangered the health of American soldiers even as it lined contractors pockets.”

Where was Congress while this was going on? And the American people—where were we?

 

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