December 30, 2005

A New Year's Resolution

When I graduated from high school, I did not so much decide to go to college as I simply just went to college. College after high school had been my path for as long as I could say “university.” Many of my peers joined me in going to college. Others went straight into the work force. And still others joined the armed services. I remember registering for the selective service on my eighteenth birthday, but I did not ever consider enlisting after high school. I even wondered why those who did would.

Nearly a decade of perspective later, I find myself in awe of those who, at the age of eighteen, made the decision to serve our country. I wonder where they are today, how they were affected by their experience. I hope they benefited from their service because I know that I have.

If you have read this column, you know I am generally not one to put a giant magnetic “support our troops” ribbon on the back of my car or go around with chest-thumping patriotism. I find that I serve my fellow citizens by helping others gain the full protection of the law as a lawyer and by providing information and a critical perspective of our government and society as a writer. I consider myself a patriot, just not a very loud one.

Americans who volunteer to serve this country as soldiers or sailors or pilots or otherwise demonstrate the highest form of public service at the earliest of ages. On the cusp of adulthood, they dedicate their own lives to the good of an entire country. They serve millions of people they will never meet. In a time of war, they do so at great peril, but even in a time of peace the commitment is heroic. In times like these, their sacrifice is magnified and celebrated, though just as admirable as ever.

Each servicemember joins for his or her own reasons. Each has his or her own family. Each has his or her own friends and hobbies and interests and home town. Each deserves our deepest respect and most heartfelt gratitude. Each deserves to be taken care of, not just physically, but emotionally and economically. Each took on the responsibility of serving each of us and it is therefore our responsibility to ensure that their service is rightfully honored and recognized.

Those who serve our country are not responsible for the decisions of our leaders. They are not responsible for the policies of our government. They are only responsible for their decision to step up and put their own life on the line for the national good. For that, they are entitled to our highest esteem. If they do make mistakes, they, like any American, should be held responsible. But even their mistakes do not diminish their act of commitment.

As I reflect, I am very glad I went to college. It was the right decision for me. But I am proud of my fellow graduates who chose the route of national service. I am proud to live in a country that has so many of these extraordinarily dedicated individuals. I am honored to have them serve in my name. Their voluntary assumption of the responsibility of serving and protecting an entire nation is overwhelming. There are many Americans who accomplish amazing feats and do tremendous good for our country, but serving all of us in the armed service is special. And those who do it deserve to be thanked and thanked often. This is my resolution for 2006.

December 23, 2005

Dallaire Redux

In 1994, Canadian general Romeo Dallaire led a UN peacekeeping mission in Rwanda. General Dallaire, operating with a limited mandate and a small contingency of troops, pleaded with his superiors for the materials and authority to make a real difference stopping the genocidal slaughter unfolding outside his window. Instead, the UN, at the insistence of the United States, decided to do just the opposite, shrinking General Dallaire's mission and handcuffing him as the country descended into death.

After several years suffering beneath the memories of his failure in Rwanda and nearly committing suicide, General Dallaire has heroically become one of the world's most outspoken critics of inaction in the face of genocide. In 2004, as the 10th anniversary of the Rwandan genocide arrived, General Dallaire told his story around the world, pleading that the international community not repeat Rwanda's mistakes in Sudan. The heads of those who heard General Dallaire invariably nodded in agreement. This man is right, we all thought. We must do things differently next time.

Yet, here we are.

On December 31, American funding for the African Union force charged with maintaining some semblance of security in Darfur will expire. This week, Congress rebuffed attempts to reinstitute next year's funding of the mission, funding the United States pledged and that Congress scrapped from the budget last month. This is not a murky situation. We know that genocide is occurring. We know that the African Union is the only force that can help -- in fact, we supported sending them there in the first place. We know that the funding for the AU is necessary to continuing their mission of protecting refugees and discouraging further destruction of villages. We know that our funding will expire. Yet we have scrapped our previous commitment to provide a third of the budget and refuse to restore it, putting the AU's mission in grave jeopardy. Once again, we are pulling the rug from beneath the only viable force who can confront a desperate situation.

Secretary of State Condoleeza Rice, who has championed the Darfur cause by visiting the region and keeping it high on the State Department's radar, desperately lobbied lawmakers to put the AU funding back into the defense appropriations bill for 2006. "We are in critical need of funding," Rice wrote to Congressional leaders, "to continue this mission at a robust level in 2006." However, Rice's pleas to restore the funding in the defense appropriations bill were ignored. While Democrats mustered the will to filibuster the bill due to a provision that would have allowed oil drilling in Alaska, there was hardly a peep from either party regarding the shameful failure to fund the very troops American leaders hailed as the answer to the unfolding tragedy in Sudan. Although to this point the United States has admirably provided $160 million to the mission, as well as logistical military assistance, such as airlifts, this act -- or failure to act -- by Congress threatens to undo any progress that has been made. By shirking our share of the burden, the U.S. not only deprived the AU of much-needed funding, it sent the signal to other donors -- the European Union -- that funding for this mission is not a high priority. How can we expect others to do their share when we fail to do our own?

Certainly, somewhere in Darfur there is an African Union general playing the role of Dallaire in this sequel. He is looking on the landscape beyond his window, seeing where he and his troops could provide valuable and vital protection to helpless civilians. He can see the attacks and gunfights his troops could stop -- or at least discourage -- if only they were given the tools and the authority. And he, like Dallaire, will soon get a call informing him that at this time of critical need -- for in a genocide, all times are of critical need -- his mission is not being enlarged, but limited. He, like Dallaire, will ask why, and he will learn that the international community, led by the American Congress, has determined that his mission is no longer worth funding. He, like Dallaire, will be handcuffed and forced to witness genocide. In a decade, he may travel the globe speaking to audiences of nodding heads and pleading that these mistakes not be repeated. Again. I hope this sequel never plays out, but after this week's failure by our Congress, I am not optimistic.

December 16, 2005

Intelligent Intelligence Reform

With a rare and welcomed dose of humility, President Bush acknowledged this week that the information he fed the nation to build support for the war in Iraq was flawed. "It is true that much of the intelligence turned out to be wrong," the President admitted. "As President, I am responsible for the decision to go into Iraq."

But the intelligence relied upon for the war did not "turn out" to be wrong. It was known at the time to be flawed. The claim that Iraq had attempted to obtain weapons-grade uranium in Niger was known to be based on fabricated documents, yet it made its way into the President's State of the Union address. The much cited but unproven link between Al Qaeda and Iraq was likewise based on information known to be unreliable. The source of the "credible" (Administrations word, not mine) evidence linking Saddam Hussein to Al Qaeda was a top Al Qaeda leader captured in Pakistan in 2001. After questioning by the US, this leader was sent to Egypt where he "confessed" (my word) that Al Qaeda and Iraq had worked together for training purposes. The link between Al Qaeda and Iraq was so often cited that, despite overwhelming evidence to the contrary, a majority of Americans thought Saddam Hussein was directly involved with the September 11 terrorist attacks.

As early as February 2002, the Defense Intelligence Agency expressed skepticism about the Al Qaeda leader's confession, noting that Egyptian authorities were known to use harsh treatment (read: torture) to gain information. Any information so obtained, the D.I.A. reasoned, could be considered coerced and unreliable. In other words, torture can lead to flawed intelligence. The President has now acknowledged that the pre-war intelligence was faulty and he places upon his own shoulders the duty to fix it. "I'm also responsible for fixing what went wrong by reforming our intelligence capabilities," the President added. "And were doing just that."

Are we? As the President shifted his PR approach from repeating "victory" to accepting responsibility, National Security Advisor Stephen Hadley was working on behalf of the Administration to alter language in a military spending bill that would ban cruel, inhuman, and degrading treatment of prisoners. The provision, inserted by Senator John McCain and overwhelmingly approved in the Senate, met with resistance, including a threatened veto, from the Bush camp. Wednesday night, however, the House followed the Senate's lead and urged the negotiators to accept the bill as written rather than to include the broad exception for CIA interrogators proposed by the Administration. So rebuked by both chambers, President Bush cut his losses and agreed yesterday to the ban with only slight modification. The provision should be passed into law before the end of the year.

I applaud the Administration for acknowledging mistakes and stating an intention to undertake reforms that will prevent their repeating. However, matching such rhetoric with true reform should not be as difficult as the Administration made it in this case and the Administration's track record on matching words with action has been dismal. The Administrations reasoning in opposition to this ban was deeply flawed and led to a destructive, unending cycle: (1) Torture is leading to faulty intelligence; (2) The faulty intelligence is leading us into war; (3) The war is used as a recruiting tool to create more terrorists; (4) To combat this threat, we need better intelligence; (5) To gain that necessary intelligence, we must be allowed to torture; (6) Return to step 1 where the circle continues. Despite this flawed reasoning and despite the claim that the President wants to fix what went wrong, the Administration continued to fight Senator McCain's ban until the last moment (and may still actually be resisting, albeit less openly - House Armed Services Committee chairman Duncan Hunter has vowed to oppose the measure and tie it up in committee).

Senator McCain's triumph is a step forward. The Administration's kicking and screaming reluctance to accept this step is not encouraging. "Now we can move forward," Senator McCain stated from the oval office, where the agreement was announced, "and make sure that the world knows, as the President has stated many times, we do not practice cruel, inhumane treatment or torture." The President has indeed repeated this claim many times, but the pronouncement that the US does not torture is more credible coming from Senator McCain because he, unlike the President, has backed up his words with action. Let's hope the President can follow the Senator's lead.

December 09, 2005

Raising Questions About Don't Ask

One of the more frustrating things about being a lawyer is when a very interesting case completely overlooks the larger context in which it is set. Such was the case this week when the Supreme Court heard arguments in a case over whether the government can legally cut federal funding to law schools who have banned military recruiters from campus on the basis that the military discriminates against gay and lesbian students.

The case stems from the Solomon Amendment, a statute that allows the government to restrict federal funding to aid recipients who do not allow equal access to federal recruiters, including the military. In the past, law schools banned military recruiters because the schools do not allow any recruiters who discriminate and because the military’s Don’t Ask, Don’t Tell policy does discriminate against gay and lesbian students. The most recent change to the Solomon Amendment, providing that such action by one part of a university could put in jeopardy federal funding for the entire university, was intended to put the squeeze on the law schools. It worked. Facing a loss of billions of dollars in funding for research and financial aid, universities forced their law schools to allow military recruiters on campus. Unhappy, a group of law schools sued.

The Court of Appeals found for the law schools, concluding that enforcement of the Solomon Amendment forced schools to propagate the military’s message of discrimination, thus violating the law schools’ collective right to free speech. The Supreme Court, however, appears to see things differently. In oral arguments on Tuesday, the justices seemed sympathetic to the government’s claim that they desire equal access, not any endorsement of military policies. Chief Justice John Roberts summed up the government position, “If you want our money, you have to let our recruiters on campus.” The schools could, of course, refuse the federal funding and continue to bar military recruiters, but a stand on this principle, the schools have determined, is not worth the large sums they would forfeit as a result.

Although this case may be interesting to constitutional law scholars, the debate about military access and free speech is really a legalistic offshoot of a separate and more interesting debate about the wisdom of continuing to ban gays from the military. The case provides an opportunity to reevaluate the root of this issue. Since 1993, the military has operated under the supremely silly Don’t Ask, Don’t Tell policy in which gay Americans could serve in the military so long as they do not engage in “homosexual conduct” – a category that includes admitting you are gay. If the military determined that this discriminatory policy were no longer useful, the debate about access to law schools would be rendered moot.

The military has been resistant to admitting gays in the past and remains so today. There is concern that gay soldiers could disrupt a military unit’s cohesion by creating tensions among soldiers and eroding morale. However, in the dozen years since enactment of the Don’t Ask, Don’t Tell policy, public acceptance of homosexuality has come a long way. In those same dozen years, more than 10,000 gay servicemembers have been discharged for being gay. At a time when troop recruitment is slumping and many of our soldiers are facing the prospect of multiple return trips to Iraq, the military may be more open to allowing all willing Americans, regardless of sexuality, the opportunity to serve.

On this issue, the United States is out of step with the majority of NATO militaries as well as that of Israel. In 1999, the United Kingdom lifted a ban on homosexuals and allowed gays to serve. The reaction to lifting the ban has been “less dramatic than expected,” according to Michael Codner of the Royal United Services Institute, a research group with close ties to the British military. Codner did acknowledge that acceptance varied by field: “If you’re a paratrooper and you’re gay, you probably keep your head down, whereas in other units, such as the medical services, it’s less important.”

The American policy has led to the discharge of 54 Arabic translators, an area of desperate need for the military, and an area where acceptance of gay service members would likely be high. Lt. Col. Allen Bishop, a West Point professor who has argued for the law’s repeal, wrote “The war in Iraq highlights the shortsightedness of discharging Arabic linguists who happen to be gay.”

To say that the presence of homosexuals in the military would erode morale underestimates the number of service members who would accept a gay peer and caters to the prejudices of the minority who would not. The military has always been a leader in providing opportunities to a diverse group of Americans. It is time not only to think about whether the military should be allowed to demand access to law schools, but more importantly, to rethink the wisdom of continuing to exclude gay Americans from serving their country.

December 02, 2005

'Tis the Season

For the past two and a half years, genocide has been unfolding on our watch. It is not being done with the devastating speed of Rwanda’s 100 days in 1994 or with the machine-like efficiency of the Holocaust, but it is genocide nonetheless. Innocent people are being targeted and killed because of who they are and where they live. Villages are being destroyed. Women are being raped. Children are being slaughtered.

This genocide is happening – and has been happening – in Darfur, a Texas-sized region in western Sudan. Darfur is made up of peasants of African descent and nomadic herders of Arabic descent. African rebels, fed up with the economic and political suppression from the national government in Khartoum, rose up several years ago. The government’s response has been criminal. Rather than engage the rebels – either militarily or in dialogue – the government enlisted the services of an Arab militia, the Janjaweed, to simply wipe out the African tribes in their entirety. Often with logistical support from the national military, the Janjaweed have obliterated hundreds of African villages and displaced millions of people. The displaced live in unsecured refugee camps under the constant threat of a return of the Janjaweed. Several hundred thousand have been murdered already. It is a desperate tragedy.

And we are allowing it to continue. By “we” I do not mean our government, but each of us individually. Certainly our government could do more. So could we.

We are all, of course, against genocide. The deliberate targeting of one segment of a population for destruction is loathsome to us all. Yet, few of us take action consistent with these near-universal humanitarian sentiments. When it comes to taking action, we are struck by a host of paralyzing feelings. We feel separated (Sudan is far and I know nothing about the victims) and confused (I don’t know who is truly at fault in this complex situation). We feel helpless (I cannot make much of a difference anyway) and overwhelmed (there are so many organizations already taking action and I do not know which is best). These emotions combine to freeze us into collective inaction. This is part of the reason genocide persists: the good people of the world do not act to stop it.

Samantha Power, author of A Problem from Hell, the definitive account of American responses to genocide in the 20th century, and the best professor I ever had, often talks about a toolbox of potential responses to genocide. She notes that the American government could use the military intervention tool or the economic sanctions tool or the diplomatic pressure tool. Too often, however, the government makes an all-or-nothing decision on the military intervention tool and takes all the other tools off the table. Since we cannot take military action that would really stop genocide, the government seems to be saying, we cannot take any action at all.

As private citizens, we face the same dilemma. Since we cannot stop the genocide on our own – and none of us can – we do not feel that we can do anything at all. Writing a letter or giving a small donation seems a paltry and wholly insignificant response to the brutal murder of thousands of human beings. But it is not. We each have our own toolbox containing a wide spectrum of possible action. From one end of that spectrum, we could volunteer for an aid organization and actually go to Sudan to take action, but that is a highly unrealistic option for most of us. Alternatively, we could simply support financially the organizations who are doing good work in Darfur. Still, most of us do not have unlimited budgets to give endlessly. But we can all visit the websites of these organizations or sign up for their monthly newsletters. This allows the organizations to show leaders that there is a constituency of concerned citizens they are lobbying on behalf of.

We have political tools. We can write letters to our government representatives alerting them to our outrage that our government has not put more pressure on the Sudanese government to end the massacres or on the international community to take more forceful action, such as sanctions. We can vote those who do not act out of office. We have economic tools. We can support efforts to divest money away from companies doing business with the Sudanese government, sending the signal that if they will work with murderers, we will no longer work with them. We have social tools. We can write letters to our local newspapers expressing surprise that the genocide is not being adequately covered. We can learn more ourselves and inform our friends about this quiet genocide. Education and publicity are so important to keeping the pressure on our leaders to act.

In Ohio, Ginghamsburg Church created its own tool. Last year, the church began a remarkable campaign to spend less of Christmas presents and donate the savings to aid for Darfur. They raised $327,000 and are continuing the effort this year. In that spirit, I am donating a full night of Chanukah to Darfur advocacy. I have selected two organizations I will donate to and I will write to my representatives and the President voicing my outrage. As a Jewish person, I am particularly sensitive to the threat of genocide and I feel a special responsibility to ensure that this happens never again. During the Holocaust, it was the acts of individuals – not of slow-footed governments – that saved lives. We must follow in the tradition of those courageous citizens who provided hiding places or overlooked false passports to help fellow human beings survive. Taking a stand against the decimation of any group is important to us all. So long as genocide can happen to anybody, it can happen to anybody.

I am happy to provide resources or sample letters to anyone who would like to join in this effort this holiday season.

November 18, 2005

Tort Reform 101

When you hear the word “torte” you probably think: Mmm. Yummy.

When you hear the words “tort reform” you probably think: Change the channel.

Tort reform is not a very delicious issue and it is one about which few Americans are well-informed. The tort system is important because it represents our effort as a civilization to address the wrongs, intentional and unintentional, that we inflict on one another from time to time. As some would say more crudely, “stuff happens.” The tort system is how we deal with it after stuff happens, balancing the needs of victims with practical considerations of the injuring party.

First, a refresher from the first year of law school. A tort is an injury to a person or property, not a layered cake (unless, that is, the cake is filled with shards of glass as one creative Torts professor allegedly served to effectively drive home the homonym). Without knowing it, we are all very familiar with torts. An auto accident injury, a medical malpractice claim, a suit against a tobacco company, a claim against McDonald’s for too hot coffee – these are all torts, and there are many more.

The debate on tort reform pits tort reformers, those who feel too many meritless suits are burdening our judicial system and too large jury awards are bankrupting good companies, against tort crusaders who see tort practice as a noble battle to gain deserved compensation to victims of wrongdoing or negligence. Currently, legislatures nationwide are considering tort reform efforts that may cap jury awards or immunize entire industries from suits. These efforts are throwing out the baby with the bathwater. Effective tort reform would seek to address the problems with the system while recognizing its strengths.

For strengths, tort crusaders cite the field of defective consumer products, where the tort system and the potential for heavy penalties encourages a high degree of care for consumer safety (some would say not high enough) and does a good job of making the consumers who do bring suits whole again. Although some would argue that the costs of defending these suits is debilitating to business, if a company is unable to affordably create a product that is safe enough to not harm people, maybe that company should not be making the product in the first place.

Tort reformers, meanwhile, can point to the field of medical malpractice as particularly illustrative of the problems with the system. When doctors make mistakes, patients’ first instinct is not typically to sue. Instead, they want to know what went wrong and why, and they do not want to worry about paying to fix the mistake. The tort system completely fails to address these concerns. Doctors, spooked that any acknowledgement of fault will translate into a future massive jury award, are reluctant to communicate openly when mistakes are made, making the apology and explanation the patient wants highly unlikely. Since, as Dr. Atul Gawande notes in this week’s New Yorker, the medical profession has come up with no alternative, patients’ next step is to find a lawyer. In the end, often both winner and loser finish the process dissatisfied.

Lawyers themselves are also part of the problem. Because of lawyers and the divergence in the interests of lawyers, their clients, and society at large, the current tort system suffers from a paradoxical problem – there are both too many and too few tort suits. Why too many? Lawyers, knowing the high cost of a suit to any defendant, count on the defendant’s willingness to settle even where wrongdoing is far from clear. Such lawyers bring faulty suits fishing for deep pockets. Conversely, lawyers refuse to bring many smaller, valid claims. Despite the outcry that doctors are overrun by meritless suits, 98% of patients actually harmed by doctors never bring suit. Lawyers will not take such cases because they are not interested unless the potential recovery is enormous. This situation leaves a large segment of the population with legitimate claims and without any means of addressing their grievances.

So, how to reform the system? Here are three suggestions:

- Discourage meritless suits without discouraging suits with merit. In England, losing litigants pay the winner’s legal fees. This system highly discourages bringing suits that simply fish for deep pockets since such plaintiffs may be stuck with the defendant’s legal bills, but it goes too far. “Loser pays” removes any incentive for a plaintiff, such as one harmed by an untested but well-marketed drug, to take a chance on filing a claim. A modified loser pays system recognizing that some losing cases are brought with merit could help both discourage meritless suits and pave a smoother road for cases that deserve to be heard.

- Line up the incentives of lawyers with the incentives of their clients. Lawyers should be rewarded for bringing cases of merit even where a large award is unlikely. Providing juries with the flexibility to assess a standard “lawyer’s award” for even small recovery cases would help provide access to tort victims who cannot currently find representation and must simply swallow their losses.

- Discourage litigation and encourage less adversarial mediation. This is probably the most important step. Dr. Gawande notes that this has been done with respect to vaccines, where a small surcharge is added to every dose of a vaccine, money that goes to a fund to help pay for the expenses of the few victims whose vaccines go awry. Because victims’ needs are met up front, there is no impulse to sue and relations between parties remain cordial and productive.

The tort system needs revamping, but efforts to cap awards and immunize industries from suit only benefit defendants without recognizing the good that the system serves. A more thoughtful debate on tort reform is worth having – perhaps over a delicious layered cake (hopefully without glass).

November 11, 2005

Missed Opportunities on "Elections"

Once upon a time, Americans mocked the elections taking place in the single-party Soviet Union by referring to them as “elections,” rather than elections. The quotation marks implied that the removal of choice from an election stained such an election as inadequate or even fraudulent.

These days, even as we export democracy to Iraq and celebrate the elections taking place there, our own elections may not be quite adequate themselves. Nathanial Persity, an election law expert at Penn Law School, pointed out earlier this year that the turnover in the U.S. House of Representatives is actually lower than the turnover in the Soviet Politburo.

Indeed, according to the government reform group Common Cause, in 2004, only 7 of the 399 incumbents running for the House were defeated. That’s a 98.2% victory rate for incumbents, and 4 of the 7 who were defeated came from Texas where a supremely sketchy mid-decade Tom DeLay-inspired redistricting led to the ouster of Democrats. And the incumbents did not win competitively – 85% of them won by more than 60 points.

Shocking, isn’t it? Elections in the House, the body imagined to be closest and most accountable to the people, may be nothing more than “elections.” By removing the barrier of contested elections, an oligarchy of permanent politicians has taken an enormous bite out of government accountability. The result is greater concern for the donors who fill incumbents’ coffers to ensure that the next “election” will turn out exactly like the last. Given this situation, it should be no surprise that it is special interests and not voter interests that move the ball in Washington.

How did we get to this point? In 1812, Massachusetts Governor William Gerry transformed the Essex County district to a shape vaguely reminiscent of a salamander, birthing the term “gerrymandering,” and providing what would become the tool-of-choice for politicians to entrench themselves and their parties in office.

Although generally thought of in a negative light, gerrymandering has its upside. It can be an extremely useful method to maintain minority representation in government. In the South and Southwest, gerrymandered districts have been used to assure Black and Hispanic Americans a seat at the political table and to prevent minority interests from being ignored by the tyranny of the majority. However, more often, gerrymandering is used not to benefit the voters, but the politicians themselves. State legislatures are generally given the responsibility of drawing the very district lines they depend on for their positions. Leaving the inherently political task of redistricting to those with the most at stake in hope that they will not exploit that power defies centuries of human experience.

Voters this week in Ohio and California had the opportunity to consider reforms to redistricting, but the measures in neither state passed. The two plans were met with considerable disdain from both parties. Redistricting for selfish political gain, after all, is a nonpartisan issue – both parties gain from eliminating competitive elections.

In California, the measure was proposed by a Republican governor in an effort to break a Democratic lock on the state legislature. Governor Schwarzeneggar proposed that the task of redistricting be handed over to a panel of retired judges, but ran up against heavy Democratic opposition. The sides were reversed, but the result the same, in Ohio, where labor unions and pushed for a measure creating an independent panel to redraw districts and break Republican control of the state assembly.

Both measures would have maintained the necessary human involvement in redistricting in order to keep the good of gerrymandering (minority representation), while eliminating the bad (partisan strangleholds). The defeats were a setback for the election reform movement, though the fight moves on to states like Florida and Massachusetts.

The self-dealing of redistricting is truly repugnant to most Americans. With voter accountability slowly being removed from the political process, referendums like those in Ohio and California provide the rare opportunity to halt partisan redistricting. Unfortunately, voters failed to capitalize on the opportunity this week and ensured that at least in two states, elections will be more like “elections.”

November 04, 2005

Activism Shmactivism

Hardly had the words “Samuel Alito” left President Bush’s lips before conservatives nationwide started gushing about Judge Alito’s judicial philosophy. President Bush insisted that Judge Alito had “a deep understanding of the proper role of judges in our society. He understands that judges are to interpret laws, not to impose their preferences or priorities on the people.” Senate Majority Leader Bill Frist lauded Judge Alito’s judicial restraint and his “respect for the limited role of the judiciary to interpret the law and not legislate from the bench,” a compliment echoed by Roberta Combs, president of the Christian Coalition of America, who called Judge Alito a “strict constructioninst who will not legislate from the bench.”

Apparently, conservatives have a deep aversion to a judge legislating from the bench or imposing his preferences on the people. However, this is not entirely true. What conservatives – and all of us, actually – truly have a problem with are judges who make decisions they do not agree with. There is nothing inherently wrong with a little judicial activism, it seems, so long as it gets to the right result. Pun intended.

The knock against judicial activism is that by interpreting statutes and policies governing touchy social issues, unelected (and unaccountable) judges are able to make decisions that thwart the will of the majority. The fear is that regardless of how the democratically-elected branches craft laws, the judicial branch can step in and impose its own perspective as a sort of super-legislature.

To an extent, this criticism is true: judges do have the power to interpret laws enacted by the elected branches to ensure that such laws are consistent with the Constitution. However, it is precisely because judges are the furthest removed from the people that they are able to do their job without concern for their own popularity or the popularity of their opinions. Interpreting the Constitution, of course, is not a popularity contest but a process requiring much thought and careful consideration.

Were conservatives genuinely concerned with the prospect of a super-legislating judge imposing his will over the judgment of the elected branches, they would undoubtedly be dismayed by a judge who repeatedly declared congressionally-enacted laws invalid. Yet, the two justices conservatives hold up as pillars of judicial restraint – Justice Scalia and Justice Thomas – have voted most often to overturn congressional action, according to a study by Paul Gerwitz of Yale Law School. Justice Thomas was ready to throw out law passed by a democratically-elected Congress two-thirds of the time.

Likewise, Judge Alito himself is guilty of this strand of judicial activism, having repeatedly voted to overturn laws passed by legislatures, including portions of the Violence Against Women Act and a law restricting carrying firearms near schools. The decisions of the legislatures in these cases were thwarted because of Judge Alito’s interpretation of the Constitution.

What is more revealing, however, is that Judge Alito was not always so willing to disregard the decisions of the legislative branch. On that most touchy subject of all, abortion, Judge Alito showed great deference to the Pennsylvania legislature when he voted to uphold an abortion restriction requiring spousal consent. Conveniently, Judge Alito was willing to show deference when he agreed with the legislature, but was less willing to do so when he did not. The will of the people, it seems, receives greater weight when it is in line with Judge Alito’s own personal philosophy.

Not that this is unique to Judge Alito or disqualifies him from a seat on the Supreme Court. It simply disavows the notion that conservatives have anything more than their own self-interest in mind when they scream “Judicial Activism!” These days, it is liberals who are up in arms about judicial activism. Senator Charles Schumer, speaking about the Alito nomination, commented, “What would really bother me is somebody who would want to make law.” Where President Bush and fellow conservatives see a judge who “does not legislate from the bench,” Senator Schumer sees a judge who may want to make law. They are of course looking at the same record of the same person and trying to squeeze politics into what should be (but certainly is not) an apolitical job. Reducing a judicial philosophy to a sound byte is always a misleading oversimplification and serves only the person making such a comment. Judge Alito is obviously very intelligent and honest. It is a shame the conversation surrounding his nomination – from both sides – is not.

October 28, 2005

Tortured Response

As Washington buzzes with speculation about Plamegate and the Miers withdrawal, a truly reprehensible request by Vice-President Cheney is slipping under the radar. Last week, I applauded Senator John McCain for standing up in the face of a threatened White House veto and rallying the support of 90 Senators from both parties to attach a provision to a defense spending bill that would ban torture of any detainee held by the U.S.

Standing up against torture is a good thing, right?

Not according to the VP, apparently. Cheney, along with CIA Director Porter Goss, reportedly lobbied McCain to include a broad exception to the ban that would allow CIA agents acting abroad to continue with carte blanche interrogation. No more of the legal-speak about the torture convention or the Geneva accords or even the Constitution. The Administration’s policy is not disturbingly clear: We have a right to treat prisoners inhumanely. How’s that for moral values?

A stand like this by the Administration erases any doubt that it is the leaders at the highest echelons – and not the “bad apples” being punished – that created the detention culture that led to the disgrace of Abu Ghraib. Allowing the CIA to continue inhumane interrogation practices will only further that culture. But don’t trust me. Check out what the government’s own August 2004 report on Abu Ghraib concluded:

“CIA detention and interrogation practices led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib. Speculation and resentment grew over the lack of personal responsibility, of some people being above the laws and regulations. The resentment contributed to the unhealthy environment that existed at Abu Ghraib.”

In the face of this, the Administration continues to insist that torture is a necessary, if repugnant, part of gathering intelligence in the war on terror. Yet, interrogation experts repeatedly assert that torture yields a high percentage of faulty intelligence as detainees say whatever comes to mind in order to end their suffering. This is why the McCain torture ban – authored, it should be noted, by a former POW who knows a bit more about sacrificing for his country than the Vice-President with “other priorities” – has the support of two dozen retired senior military officers, including Cheney’s everlasting thorn in the side, Colin Powell.

Torture and the outrage that accompanies its inevitable discovery actually undermines the war on terror far more than any intelligence gained through torture helps it. In other words, torture may put more American lives in danger than it protects. The imagery and resentment that emerge from Abu Ghraib and Guantanamo Bay fuel terrorist recruitment and anti-American sentiment among even the moderate Muslim community and erode any moral authority the US has in the rest of the world. Torture rallies our enemies and alienates are friends. It is not only illegal and generally immoral, but it is bad strategy.

Instead of undertaking the difficult work necessary to create global systems to gather good intelligence, the Administration continues to pursue a lazy strategy of torture. Unfortunately, this unwillingness to tackle difficult problems with thoughtful solutions is nothing new for this Administration or any other recent Administration. Politicians-in-chief look for easy solutions, like torture, rather than effective ones. Politicians, it seems, will always have other priorities.

Still, Senator McCain and his bipartisan Senate allies continue to stand firm on this issue in the face of a disgraceful and unwise, yet unsurprising proposal from Vice-President Cheney and the CIA. At least some in Washington still have their priorities right.

October 21, 2005

E: Democrats

Imagine the manager of the Astros or White Sox delivering this pep talk as the World Series kicks off this weekend:

"Guys, I'm proud of you for getting this far and I've got a fantastic game plan thats gonna win us this World Series. We're gonna take that field and were gonna hope -- and I mean really hope -- that the other team makes a bunch of errors! Are you with me?!"

It's hard to believe that the players would rally around this anti-Lombardian battle cry. The very spirit of competition requires a strategy more bold than hoping an opponent simply screws everything up. Yet, this appears to be the exact strategy employed by Democrats these days. The party of FDR and JFK and LBJ, a party that once dreamt big ideas and pursued them, has been reduced to a cadre of eggshell-walkers and finger-crossers.

While Republicans populate think tanks and cook up big ideas to push their conservative agenda, Democrats read books like Whats the Matter with Kansas? and Dont Think of an Elephant -- excellent accounts of the marketing aspect of politics -- and tell themselves that it is simply presentation that is their problem.

Although Republicans are undeniably winning in P.R., a marketing advantage does not automatically translate to electoral success. How many big budget movies with million-dollar marketing campaigns flop and how many less marketed, but higher-quality films do well? Compare the fates of Troy (flop) and Sideways (Oscar nominee) and youll see that better marketing is far from determinative.

It is not superior marketing that has lead to the recent Republican domination, but the fact that Republican marketing is the only thing filling the current void in American leadership. Any leadership void will be filled by something. Instead of stepping up and filling it with progressive ideas and strong leaders, Democrats have watched the current void be filled by White House propaganda. The results --control of zero of the three branches of government -- speak for themselves.

Sadly, Republicans have been making error after error recently, convincing many Democrats that the wait-and-hope strategy is finally paying off. Such belief is self-delusional. The recent failures and scandals in Republican leadership confirm nothing except the well-known fact that a party left unchecked by effective opposition can undo itself by abusing its power.

This Administration has been failing for five years now and they have yet to pay any price for it because Democrats are spending too much time waiting for the next error and too little time actively offering an alternative. Why should the current Republican struggle be any different? The most recent Democratic presidential candidate was nominated not because he had the best ideas or because he could connect with the American people, but because he was thought to be "electable." We know how that turned out -- electability alone, it seems, does not make one very electable. Still, hopefuls for 2006 and 2008 continue racing to the right to attain that very same badge of electability.

These days the most successful Democratic opposition is coming from a Republican. Senator John McCain recently pushed an anti-torture clause into a defense spending bill in the face of a threatened White House veto, rallying the support of Senators from both sides of the aisle. McCain, himself a veteran of the bullying marketing of the current Republican machine, is unburdened by wariness of electability. Instead, he has repeatedly identified problems and acted to solve them. In the process he has made himself quite electable.

As I sit to watch the Astros and White Sox battle it out over the next week, I will be hoping to see sharp, error-free baseball. I want to see each team give its best effort, pushing its opponent to the brink and fighting back when pushed. The World Series should not be decided by which team makes more errors. Neither should the leadership of our communities and our country.

Come on Democrats. Play ball!

October 14, 2005

Yom Kippur for US All

Yom Kippur, the annual Jewish day of repentance, is upon us, and while we may not all literally believe that going to synagogue and repenting for our sins wins us points Upstairs, this holy day provides a tremendous opportunity for self improvement. Our busy lives are easily consumed by daily tasks and distractions (MTV’s Real World is my personal distraction-of-choice) that prevent us from stepping back and evaluating the world and our place in it. Yet, in order to improve, as individuals and as a community, we must take stock of our faults and strive to learn from them.

Coming as it does on the heels of the Jewish new year, Yom Kippur’s invitation to acknowledge our shortcomings is not so different from our annual New Year’s resolutions to quit smoking or volunteer more. A new year brings the chance to learn from our transgressions and remake ourselves to better reflect the people we would like ourselves to be.

As I sit in synagogue, I will confess my own personal sins. Here’s a sneak peek. In the past year, I have done too much talking about problems and too little actual problem-solving (this column doesn’t seem to help, does it?). I have not acted on compassionate instincts out of trepidation at taking a first step, fear of overall failure, or downright laziness. I have criticized others without doing anything to help. Perhaps most damningly, I have listened to hours upon hours of public radio without pledging any support. I feel that I have done some good, but there is no reason I should not be doing more.

This year, Yom Kippur comes at a particularly appropriate time for our country. For the first time in several years, we, as a country, are beginning to take stock of our failures. Slapped into reality as we were by the devastation of Hurricane Katrina, we have the opportunity to learn from mistakes and remake ourselves into a country more in sync with our professed ideals.

In foreign policy, we rarely take into account more than simply strategic military objectives. Considering a more comprehensive perspective would have led us to consider not only the broad strategic benefits of a democratic, WMD-free Iraq (choose your own war rationale), but also the number of lives, American and to a greater extent Iraqi, that would be lost pursuing that goal. Instead of hiding the bodies coming home and ignoring the innocent Iraqis dead, we would acknowledge such sacrifice, honoring it with honesty about the true costs of war. A broader perspective would have forced us to act with more than skin-deep concern for the human beings being slaughtered in Darfur. Perhaps we even could have limited the culture that allowed for our soldiers to torture prisoners, shaming themselves, their comrades who behave most admirably around the world, and us.

At home, Katrina exposed the deep bruise buried at the very root of American greatness. After 229 years of striving, we are still not a country where all men and women are created equal. We do not provide equal opportunities to succeed for children. We do not provide health care for our most vulnerable citizens. We do not take care of our Veterans in a manner consistent with the degree of their sacrifice for us. When I walked home in Boston every day, I passed a homeless shelter for Veterans. Homeless veterans? These people, a pool that is disproportionately poor and minority, put their lives on the line so that we could continue thriving in a secure country. Yet we cannot even successfully reintegrate them into civilian life. Domestic policies that recognized these shortcomings rather than shuffled them under the rug would make our community a healthier place for all of us.

There is much we do right in the United States, but being good does not excuse not being better. Patting ourselves on the back is for Independence Day, not Yom Kippur. On Yom Kippur, we strike ourselves in the heart in repentance and in the eternal hope that next year we will be better husbands and wives, mothers and fathers, friends, neighbors, and citizens. That is a practice all Americans can gain from.

October 07, 2005

Welcome to Uneven Kiel

What makes a writer a writer? There is no degree, no bar, no license to separate a writer from any other soul. There is no qualifying moment, no walk across a stage we can point to that alerts the world that: Here is a writer. Instead, being a writer requires only the belief of the writer herself that a writer is what she is.

I say all this because I know that I am a writer. I am also a lawyer, a husband, a son, a brother, and soon-to-be, a father. But there exist definitions for these labels, known criteria I can point to that qualify me. Not so for a writer. My only qualification is that something inside me comes alive when I sit with a blank sheet of paper and a pen to translate my bouncing thoughts into something coherent. For me, writing is exciting and it is therapeutic. It is part of what makes me tick, a necessary part of who I am. So, I am a writer. I have no qualification other than that belief, but a belief is all I need.

I do not know what this column will lead to, or if it will lead to anything at all. I have no agenda other than to write on issues I am passionate about and about which I feel competent writing. I may recommend a book or a movie or comment on a recent court decision (gotta use that law degree for something). I may assert my opinion, but I hope only when I can support it with more than mere fluff. I may tell a story that surprised me, exposing the world from a new perspective. I may criticize and I may applaud, but I will do both only measuredly and constructively. If I do any of these well, I will consider this exercise a success.

My goal is not to convince you that I am right (unless you are my father), but to engage you – to tell you how I see the world and learn how you see the world. Thoughtful dialogue is too rare in our society, yet it is our lifeblood. Without it we are left with prepackaged “commentary” that insults our intelligence. We are left with leaders who are not really leaders, but play them on TV. We are left without information and so robbed, we are left without choices. Finding thoughtful dialogue is too difficult, but it is there. All it requires is an open mind, a respect for opposing viewpoints, and the faith that the best ideas and not the best marketing campaigns will change the world.

I certainly come, as we all do, with my own viewpoint. I value diversity of experience and perspective. I believe a society should be judged not only by the successes it achieves in various fields, but on the way it treats its most vulnerable citizens. I don’t believe that might equals right or that a majority view is automatically correct. I believe in leading by example. I value education, but I also value getting your hands dirty. I believe in the American dream of lifting yourself to stability and success through hard work, but I also believe in providing the necessary assistance to those who start behind to achieve this dream. I don’t believe in blind allegiance, but I do believe in trusting those who have better experience and knowledge and continue to search for the right balance between questioning and trusting. I believe hours spent with family should be valued as much as hours worked, but I fear this is too rarely an option for many of us. Most of all, I believe that peace stems from doing what you love. And, among many other things, I love writing.

So, welcome to uneven kiel. I hope you’ll enjoy this as much as I will.