James Fallows

The author is Robert Kuttner, of The American Prospect. The first item is an appreciation of Albert O. Hirschman, whose death at age 97 I mentioned briefly two days ago. 

To the extent that Hirschman is widely known today, it is mainly though a small book with a puzzling title, Exit, Voice, and Loyalty, written in 1970. The book has a huge following among social scientists, mainly outside of Hirschman's own profession of economics. His basic insight is elegant, simple, and original. Citizens and consumers have two basic ways of responding when they find anything from a product, politician, neighbor, or nation unsatisfactory. They can vote with their feet (exit) or stick around and provide constructive feedback (voice).

Though orthodox economics emphasizes exit--consumers shopping around, shareholders selling stocks, workers pursuing different jobs, emigrants seeking new shores, Hirschman was partial to Voice. It was Voice that made possible civil society, Voice that made business enterprises more than a collection of spot transactions, Voice that offered useful information. And to complete the trilogy of his title, it was voice that engendered reciprocity and Loyalty.

The small book virtually revived the field of political economy.... 

I can't resist one more quote. See if you can guess why I found this part cautionary / instructive:

When I [Kuttner] first visited him at his office at Princeton's Institute for Advanced Studies, Hirschman was already in his seventies. He gestured to piles and piles of letters, papers, manuscripts and books that had been sent by students, colleagues and admirers. "I could spend the rest of my life," he said plaintively, "administering my past life." But he found time both to engage with his public and to keep producing new, important work.

There is lots more in this elegant appreciation, which very much more reading. Also, I've learned of a full-scale biography of Hirschman coming from the Princeton University Press early next year. It's by Jeremy Adelman, it's called Worldly Philosopher, and its cover is shown above. 

[S]purred by the tailwind of a re-election victory and the realization that public opinion is on his side, President Obama has displayed a new toughness in his budget battle. He has declared that he won't negotiate against himself, and the strategy is working. But the White House is still stuck in don't-make-trouble mode on the crucial issue of judicial appointments, where the pace of nominations is only now catching up with that of Obama's predecessors and the strategy for avoiding partisan confrontation gives Republicans something close to a veto over who is nominated.

The slow pace of nominations combined with Republican obstruction to create a huge backlog. There are now more than 100 vacancies on the federal bench, out of some 856 federal district and appellate judges, far more than on the day Obama took office. The flagship Court of Appeals for the DC Circuit has 3 vacancies out of 11 judges, leaving that court with a Republican majority. During Obama's first term, total judicial vacancies increased by 51 percent. During the first terms of Clinton and Bush, they declined by 65 and 34 percent respectively.

This also is worth reading, and I very much hope that the audience includes people in the White House.

As another thought experiment for our one-day-only, day-long Festival of Election Eve Dispatches™, here is a proposal for what Barack Obama should say tomorrow night if the Electoral College projections hold up and he gets more than 270 votes -- but Mitt Romney rolls up big enough margins elsewhere to win the popular vote.

I am a charter member of the "let's get rid of the Electoral College" movement, in keeping with the rationale laid out in loving detail at this National Popular Vote site. There are many reasons to wish that 60 or 70 thousand votes had gone the other way in Ohio in 2004, but among them is that it would have made resistance to the Electoral College a potentially bi-partisan issue. In 2000, the Electoral College (along with a lot of other factors) was rigged against Al Gore and the Democrats; in 2004, a shift in Ohio would have left George W. Bush with the popular-vote lead, but made John Kerry the president.

If it happened again this time? A reader tells us about that scenario:

If Obama loses the popular vote but wins the Electoral College (as seems at least somewhat probable), conservatives will predictably howl that his is an illegitimate presidency, bereft of mandate (as a friend of mine said, they didn't even think he was legitimate when he won with 53% of the popular vote).

But here's how the President could turn that consternation on its head:  On the first day after a split-vote re-election, he could call a press conference and say (essentially) "Look, we all played by the same rules, and I won fair and square.  However, I also think the Electoral College is well past its due date.  It's an archaic relic of an era when leaders weren't sure if people could handle self-government by themselves.  I think we know better now.  So, tomorrow I am calling on the Congress to immediately take up a constitutional amendment to abolish the Electoral College."

This would do three things:

1. It would neutralize the "he didn't really win" argument.  If conservatives are so upset about losing the Electoral College vote, they can stop whining and do something.
2. If such an amendment passed, it would move the elections from carry-the-state, winner-takes-all affairs in a handful of key states to campaigns to maximize votes in people-dense cities and suburbs nationwide.  Democrats would start campaigning in places like Austin, TX and my hometown of Louisville, KY; Republicans would go to Orange County, CA and Dallas, TX.  Overall, I think, a more urban electorate would tend to benefit Democrats. 
3. Taking the election national might do a lot to increase voter turnout.  If the campaigns have to make a play for voters in population centers everywhere, people who thought their votes didn't matter might be more likely to get to the polls.

My guess is that for these very reasons, Republicans would be loath to abolish the Electoral College.  And if they don't act to pass a Popular Vote amendment, President Obama will have called their bluff.

Meta-point: a truly remarkable aspect of this campaign is that neither side has spent any time dealing with the procedural issues whose importance we've been reminded of through the past four years. The Supreme Court (four of whose members are in their seventies). The %*%$&(* recent abuse of the filibuster. Gerrymandering and obstructionism in general -- and the overall breakdown of our machinery of democracy. This item is a reminder of the kind of thing we might talk about, if we were talking about this kind of thing.

More ahead. (The Festival™ runs until around the time the Dixville Notch votes start coming in.)

Our new issue is on the newsstands and in mailboxes. It is full of interesting articles, plus some new design touches. And so ... subscribe!

I have two short items in this November issue, before a long story in December. One is a tech column q-and-a with David Allen, the creator of the Getting Things Done, or GTD, approach to modern life. The magazine article is here; some outtakes from our interview are here; and some other GTD news is here.

In this issue I also have a brief appreciation of Chen Guangcheng, the civil-liberties activist from China who sought asylum in the U.S. Embassy in Beijing earlier this year and whom we have recognized as one of our Brave Thinkers of the year.

While researching that essay, I had a chance last month to interview Chen Guangcheng about the motivation for and significance of his work, and about his long-term aspirations for China. We spoke by telephone for about half an hour. I asked questions in English, and he answered in Chinese; an interpreter sitting with him in New York, at his new base at New York University, rendered each side's words into the other's language. The explanations in brackets below, [like this], are insertions by me where I thought extra background might be needed.
 
Mr. Chen made clear ahead of time that he would not discuss personal details of his detention by provincial authorities or ultimate escape from China. He will go into these in depth in a forthcoming book. But he did discuss the overall prospect for political reform in China, and why in the face of great adversity he remains optimistic. On a day when the New York Times has published David Barboza's revelatory front-page piece about the family-business empire that surrounds even the most "kindly" and "socially aware" of China's political leaders, Chen's assessments are particularly timely. (For another view on the NYT expose, see China Daily Show.)

___
Telephone interview with Chen Guangcheng, September 4, 2012.

Q. As you think about the overall situation for the rule of law, and development of civil society and individual liberties in China, would you say that things are on the whole getting better? Or getting worse?

Chen Guangcheng:
    My answer is two-fold. First, from the perspective of civil society, I would say that we have been witnessing a rising awareness by the Chinese people of the rule of law, of their rights, of rights-consciousness. All of those are on the rise, and it is an accelerating process.

    This is an inevitable trend of history. There is nothing that can stand in its way. With the help of advanced technology, and the experience of Chinese people, this rise in rights-consciousness is something that must happen, and will happen.

    In the past, people might hear only about themselves and their situations. Now this has been transformed into a situation where people do not care only about themselves but also about others, and they help each other.

    In the past, people largely relied on government officials to achieve the goal of justice. But now people have more and more relied on themselves to achieve this goal.

    I also have to say that from the legislative perspective, there has been a lot of improvement. A lot of progress has been made. The basic structure of the legal system has been established, in terms of having laws governing every aspect of the society. Nonetheless, most of the time those laws are just empty words in the eyes of the rulers.

    So Chinese people have come to realize that in order to realize their rights, and to have their rights protected, they have to go to the root of the problem, instead of just focusing on individual cases.

    It is becoming apparent that Chinese people who used to focus only on their individual cases, have now been paying more attention to the institutional changes that are called for by their rising rights-consciousness. For example, a call for the abolition of the notorious re-education through labor system. [JF this is a reference to prison-work camps.]

    In the face of these calls by the public, the rulers -- they just ignore those calls. They ignore the problems. They refuse to right the wrongs. They try to cover mistakes with even more mistakes.

    So the conclusion I would draw, from all of the above, is that in terms of the role the law plays in the society, the rule of law is absolutely sliding back. Even to the age of the Cultural Revolution.

    I think China has taken the first step, which is to make sure that there are rules and regulations and laws that govern the society. China is not doing a great job of the second step, which is to make sure that those rules are implemented and complied with in practice. Law enforcement generally speaking cannot function in today's Chinese society. That is what has given rise to all these numerous cases in which the government ignores the rules that they themselves have set up. For instance, the case of my nephew [Chen Kegui, arrested after Chen's departure], and my own case. These are all examples of the government's blatant ignorance of the law.  The government acts contrary to the law, tortures people, 'disappears' them, does all sorts of things to the innocent people without any legal basis,


Q. You say that the evolution of individual rights, and rights-consciousness, in China is "inevitable." If that is so, do you think this transformation of China will be a natural, relatively calm process? Or do you expect it to be difficult, even violent?

Chen Guangcheng:
    First, I think the shift of the Chinese society to democracy and rule of law, and of constitutional operation - all of that is definitely the trend, and there is nothing that can change this trend.

    As for how China will achieve this shift, it depends on a rich combination of factors. There are lots of things to take into account here. These include the approach taken by the leadership [in the Chinese government], the role played by human rights activists and by other people in Chinese society, and the attention the international society pays to these issues. And what kind of assistance the international society is willing and able to provide. For now, the leadership has shown no willingness to take this approach to make the shift happen. If that is the case, I believe that there will be more and more cases like Wang Lijun appearing in the near future. [Wang Lijun is the Chongqing police chief, previously allied with Bo Xilai, who broke with him and attempted to defect to British and American authorities.]

    I personally think that international society has not been ready for this shift in Chinese society. If that is really the case, it can make things worse.

    So given all those possibilities that we are facing, I think that if China remains the way it is now, that it is possible that a lot of good things will develop. But it is also possible that things will be getting worse.  But I think that this kind of uncertainty is itself exactly the sign of this coming trend and shift. It is what we would expect given what the Chinese government has been doing in terms of its lawlessness and blatant crackdown on civil society.

    Other issues that will face China in terms of how it manages its transformation include the following three: The public's loss of faith in the government. Also the loss of credibility, or lack of credibility, by the government. And the third is what has happened because of the internet censorship that China has launched with the great firewall. This has blocked information that could have gotten into China and could have affected the transformation.  What is really critical for the transformation, which will eventually determine whether the shift will be gradual and peaceful or difficulty and violent, is whether Chinese society can get itself back onto the right track.

Q. I know that there are limits to what anyone outside China - individuals, organizations, or governments - can do to affect this process. In some circumstances outside pressure or "interference" can even make things worse. What do you think outside individuals or organizations who support China's evolution to a rule-of-law society can most usefully do?

Chen Guangcheng:
    I think that for the United States - and not just the United States but also other democracies in the world -- there are a couple of things they could be doing.

    They should be aware of the coming shift in the Chinese society. And they should get ready for it. For instance, we have seen more and more mass "incidents" [demonstrations and protests, sometimes suppressed with violence] happening in China. What if the government had another massacre like the one 20 years ago [at Tiananmen Square]. What if this kind of thing happened again? What would be the international society's reaction to it? This needs to be considered.

    The Chinese government has not been performing its obligation to maintain the fairness and justice of Chinese society. The power is basically in the hands of the elite, and it has been manipulated by them. The least the international society could be doing is to exert more pressure on the Chinese government to make them deliver on whatever promises they have made to their people. The fundamental principles of fairness and justice- they don't have boundaries. They should be universal.

In May this year, the Chinese government openly promised, not only to me but a promise made to the whole world, that they would launch an open investigation into my case and make sure to bring to justice those perpetrators. [The local authorities who had arrested and abused Chen and his family.] But so far there has been no sign whatsoever of any progress on that front. This kind of blatant ignoring of one's own promise is something we should pay attention to.

    In the face of all these kinds of violation of universal values and social justice, I think that countries, including the US should, not worry about "offending" the perpetrators [in the Chinese government] if they take action. They [Westerners] should make their stance clear. They should stand behind the principles they claim they believe in. They should not ignore or turn a blind eye to the obvious social injustice, with its cost for humanity and for universal values. That is something we [Chinese people] don't want to see here. What we want to see here is our hope that the US can, as it always does, take the lead in this case to show its long standing adherence to the universal values and the international norms.

    So, we should do whatever we can to improve China's situation in protecting human dignity, and realizing the rule of law, and achieving social justice and social fairness. We should not do anything or the basis of whether the rulers of China will be pleased with it or not. And anything that runs contrary to the values I have just enumerated, the United States should not do that -even if that is what the Chinese leadership hopes they will do.

    This brings up a very critical point. The government of the United States should ask the U.S. companies that operate in China to realize that they are not only earning money in China. They should also earn the confidence of the Chinese public.

    Take Google as an example. It really has played a model role in this respect, even though its withdrawal from China may put it at a disadvantage in terms of its economics.  So far I believe that Google has earned the confidence of the Chinese people.

    I want to deliver this message to people in any democracy in the world. I want to let them know that every effort they have made in this respect will make a huge difference in China. I urge them to have faith in their ability to make changes in China.   Be confident and speak out.  The sky won't fall just because people speak up on their own opinion.

During his confirmation hearings seven years ago, John Roberts presented himself as a man who by both temperament and philosophy fully embodied the virtues of restraint. He would deliver rulings when asked but not otherwise intrude his views. As a judge he would observe a traditional deference to legislators on policy matters, intervening only when necessary; as a member of today's court he would recognize the weight (though not unchangeability) of decisions from the past. His most memorable way of making the point was to liken himself to an umpire who would call balls and strikes but not root for the either team.

In interviews and profiles in the first months after his confirmation, Roberts conveyed his ambition to be a Chief who might pull the squabbling court together, with more large-majority opinions and fewer 5-4 partisan splits. Everyone could draw hope from these sentiments from a brilliant young Chief with a long career ahead of him.

The problem is that on the bench, from September 29, 2005 until this morning, Roberts gave so little evidence that he would practice what he had preached, and so much that he would instead undertake an activist agenda with a partisan bent. Citizens United was the most dramatic but not the only example of a Chief and his majority who went out of their way to answer questions not posed by a case, and through those answers to undo what had seemed settled law. The sporting analogy, as mentioned before, would be an umpire who calls balls and strikes -- and also yells "pass interference" or "foot fault" about games he sees from the corner of his eye.

That was until today. In making a majority to sustain the mandate / "tax," the Chief Justice gave his first substantial demonstration of loyalty-to-institution outweighing loyalty-to-cause. I am willing to believe that this has been his real intention all along; that he was increasingly concerned that his legacy might be a Court whose legitimacy ebbed as its partisan predictability rose; and that he finally found the way to express his true "institutionalist" nature. To gauge the importance of this move by the Chief Justice, consider the political and legal world we would know today if he had joined the other side to make a 5-4 majority for totally overthrowing the law, perhaps accompanied by a hyperpoliticized Scalia concurrence. I stand by my previous (much objected-to) contention that this would have aggravated a genuine legitimacy crisis for the Supreme Court. [See Jonathan Chait to similar effect: "Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled."]

I am not equipped to swim into the maelstrom of Supreme Court deepthink underway right now, including analyses of the long-term implications of Roberts's ruling for the Commerce Clause. (Two good starting points, by Epps pere et fils, and this from the NYT). I attach another, from a reader, below.

The main point is: the observable facts about the Chief Justice's vision and beliefs are very significantly different today from what they were before 10am EDT. The change is all to the good, for the Court and the country.

Charlie Stevenson, a longtime Senate staffer and academic often quoted here, writes to say:

I'm not a lawyer, but I have done a lot of research on the writing of the Constitution and its implementation in the early years of the Republic. II also think I know a little about politics.

While I have no way of knowing whether the Chief Justice in fact holds any of the views I will ascribe to him, I suggest these hypotheses as highly plausible.

-- Roberts recognized growing criticism of the Court for partisanship and welcomed a way of reducing those attacks.

-- He was personally opposed to the Affordable Care Act but recognized the weight of judicial precedents in favor of its constitutionality.

-- He found, and occupied, a clever middle ground that gave both liberals and conservatives much that was pleasing to them.

-- For the conservatives, he opposed the validity of the individual mandate under the Commerce Clause and opened the door for later challenges to social legislation under it; he also took a more restrictive position on Medicaid and its burdens on the states.

-- For the liberals, he upheld the basic law under the congressional taxing power.

-- Cleverly, Roberts got the court to say that, though the law was a tax, it was not subject to the 1867 Anti-Injunction Act preventing judicial review of taxes until they are actually collected.

Deft work, Mr. Chief Justice.

Deft work, at many levels.

Read The Atlantic's full coverage of the Supreme Court's health-care decision.

In response to recent items on current partisan politics as a slow-motion coup, here are messages from two readers with extensive first-hand experience in politics. First we have Mike Lofgren, for many decades a Republican Senate staffer, whom I have quoted before and whose book on what has happened to American politics, The Party Is Over, comes out this summer. He writes:

Our great-grandparents would have recognized the current Supreme Court and the Citizens United decisions for what they are: the institutions of government in the grip of what they then called the Money Power.

Witness the 1892 Omaha platform of the People's Party ("the populists"), reacting to court rulings such as that of the 1886 court session, when a court headnote on a case, Santa Clara County v. Southern Pacific Railroad, laid the foundation for "corporate personhood" and established the precedence of corporate prerogatives over citizens' rights. The populists' Omaha Platform called out the high­est court, along with the rest of the political apparatus, as rotted by money:

"We meet in the midst of a nation brought to the verge of moral, political, and material ruin. Corruption dominates the ballot-box, the Legislatures, the Congress, and touches even the ermine of the bench. The people are demoralized. . . . The newspapers are largely subsidized or muzzled, public opinion silenced, business prostrated, homes covered with mortgages, labor impoverished, and the land concentrating in the hands of capitalists. The urban workmen are denied the right to organize for self-protection, imported pauper­ized labor beats down their wages. . . . The fruits of the toil of millions are boldly stolen to build up colossal fortunes for a few, unprecedented in the history of mankind, and the pos­sessors of these, in turn, despise the Republic and endanger liberty. From the same prolific womb of governmental injus­tice we breed the two great classes - tramps and million­aires."

That last line commands the admiration of anyone attentive to rhetoric. So does the passage as a whole. "Even the ermine of the bench" !

Next we have Charles Stevenson, who was for decades a staffer to Democratic senators before becoming a professor at the National War College. He writes:

- I used to think that increased party polarization was simply the result of the growing ideological unity of each group, a process reinforced by redistricting into safe seats.  Now I think that a better explanation is a combination of a capture of the GOP by a radical fringe and the defeat of congressional institutionalism by partisanship.  Newt Gingrich was the godfather to both movements, starting with his rejection of the bipartisan 1990 budget deal and continuing with his strategy of "destroy[ing] the House in order to save it" by undermining public confidence in the institution....

- Congressional norms have also changed, most dramatically as you've noted in terms of the abuse of the filibuster. But they've also changed in terms of defending the congressional institutions and their proper Constitutional roles. Few members any longer assert congressional war powers against a President of their own party. Committees - and conference committees --are routinely bypassed by the leadership to avoid messy compromises. Some congressional leaders seem to put partisanship above lawmaking. Bill Frist [R-Tenn] had little Senatorial experience or respect for the institution when he was picked by the Bush administration to be GOP leader. Mitch McConnell openly announced that his goal was defeating Obama in 2012, rather than something like "using the votes we have to limit presidential excesses."

- Another development that has poisoned our politics is the fact that each of the last 3 presidents has been viewed as fundamentally illegitimate by a large segment of the opposition - Clinton first because of his narrow victory in a three-man contest, then because of his lying under oath about his sexual activities; G.W. Bush because of his minority popular vote and the Supreme Court ruling; and then Obama because of questioning his birth certificate.

- I don't think we should eliminate the filibuster because I can foresee partisans on both sides wanting to prevent what they consider a radical appointment to the Supreme Court or a narrow majority vote approving use of torture or ending civil liberties in the event of another terrorist attack. I'd be happy with a rule change forbidding filibusters on "motions to proceed" and requiring the opponents to produce 40 live bodies in order to sustain a filibuster each day.

The "tramps" illustration above comes from the very useful "New Spirits / Tramps and Millionaires site," as does this Charles Dana Gibson illustration of another side of turn-of-the-19th-century American life.



Forgive me for including this sample message that just came in, as part of the very large harvest of non-supportive response that I find in the inbox on getting off a plane:

I'd like to know how many of your "knowledgable legal observers" that say Obamacare is constitutional have a connection to an Ivy League school?  I'd wager most of them do.  As such I consider whatever legal opinion they spew forth as hopelessly tainted by an ultra-radical left wing political agenda.

If the individual mandate was a Republican idea then I tip my hat to the right for putting such a blatantly unconstitutional provision into the bill that would force a majority of SCOTUS to rule it unconstitutional.

You get the joke if, unlike my correspondent, you know something about the educational background of conservative Justices Roberts, Scalia, Thomas, Alito, and "swingman" Kennedy. This is a fraught time in our national life, so I look for the bright side when I can.

Background: First, a long post on the dangers of a federal judiciary whose rulings (and expressed rationales) are harder and harder to distinguish from simple Republican/Democratic party positions. Then, a distilled version in a shorter post. Now some updates:

1) I don't have any disagreement with Ta-Nehisi Coates's examination of whether the "norms" of political life have done as much to buffer extremism as I suggested in the original post. I was talking about right/left interaction among the parties, and I do make the case that in this arena previous norms were different, and that the difference mattered. Main example: the filibuster. Either party could have decided at any point over the years to filibuster just about every appointment and piece of legislation. That didn't actually begin to happen until five years ago. Ta-Nehisi is talking mainly about rights, power, and relations among the races. Of course he is right that "norms" did very little to promote justice there.

2) In light of the current controversy, it's worth reading Jeffrey Rosen's interview with Chief Justice John Roberts, which the Atlantic ran five and a half years ago. The subhead gives the idea:
 


And as Rosen put it:

In Roberts's view, the most successful chief justices help their colleagues speak with one voice. Unanimous, or nearly unanimous, decisions are hard to overturn and contribute to the stability of the law and the continuity of the Court; by contrast, closely divided, 5-4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.

I recognize that all this hypothesizing is, yes, hypothetical as we wait to see what the Court does, and what reasoning it offers. Will weigh in again on this topic after that. 

(Midnight update: This item went up three hours ago with a more blunt-instrument headline than it should ever have had: "5 Signs the United States is Undergoing a Coup." I used the word "coup" in a particular way in the longer item this was drawn from. Using it in the headline implies things I don't mean. Through the past decade, there has been a radical shift in the "by any means necessary" rules of political combat, as I describe. Previous conservative administrations have nominated previous conservative Justices -- but not radical partisans, happy to overthrow precedent to get to the party-politics result they want. That is the case I mean to make. And I hope the upcoming health care ruling ends up being evidence on the other side.)

This is distilled from a longer item earlier today, at the suggestion of my colleagues. It's a simple game you can try at home. Pick a country and describe a sequence in which:

• First, a presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
• Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
• Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
• Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation -- and appointments, especially to the courts.
• And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?

___

Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection."

How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That's how we used to talk about the Chinese courts when I was living there. Now it's how law professors are describing the Supreme Court of the John Roberts era.

I am not enough of a Supreme Court buff to have any confident idea of what the majority will rule on the Obama health care plan.

But confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain, especially after the latest labor-rights ruling. It is worth reading carefully this lead editorial in yesterday's New York Times. In short, the same five conservative Justices who in their pre-appointment phase had inveighed against "judicial activism" and "legislating from the bench," while promising to live the gospel of judicial "humility" if confirmed, went out of their way, in a ruling written by Samuel Alito, to decree new law contrary to what Congress had ordered and other courts had long approved.*

Normally I shy away from apocalyptic readings of the American predicament. We're a big, messy country; we've been through a lot -- perhaps even more than we thought, what with Abraham Lincoln and the vampires. We'll probably muddle through this and be very worried about something else ten years from now. But when you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we'd identify as a kind of long-term coup if we saw it happening anywhere else.**
 
Liberal democracies like ours depend on rules but also on norms -- on the assumption that you'll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy. The Roberts majority is barreling ahead without regard for the norms, and it is taking the court's legitimacy with it.

Three items for extra reading.

1) On how Democrats in general should react if the Court, as seems likely, announces a plainly partisan ruling about the health care law, see Michael Tomasky's argument.

2) If you want some bitter amusement, look back at Dahlia Lithwick's excellent real-time reports on how Samuel Alito and John Roberts presented themselves, back when they were trying out for their current lifetime roles:

At his hearings, Roberts sounded the notes of "humility" and "modesty" repeatedly. Over and over, he emphasized the need for judicial deference--to precedent, to the other branches of government, and also to his colleagues on the court. He declined to answer dozens more questions than did Alito. But his casting of himself as a modest cog in a vast and complicated machine afforded real comfort even to those of us concerned about his substantive views.

At first blush, Alito's approach appears simply to be a different flavor of judicial modesty: Where Roberts spoke repeatedly of deference to other institutions, Alito persistently defers to the legal process itself. He tells us, over and over again, that he approaches cases with an "open mind." He says he would start analyzing any issue by closely scrutinizing the relevant statute. He insists--time and again--that he hasn't yet fully studied the issue at hand and cannot therefore offer an opinion.

There's a lot more, and all in the same mode that in retrospect was quite plainly 100% cynical.

3) Reflecting the change in norms leading to a change in reality brought by routine abuse of the filibuster, a Congressional reporter tells us that a recent proposal failed in the Senate, because "Sixty votes were needed to pass."

Of course we students of government know that this answer is incomplete. These days, the actual number of votes needed is 60 -- or five.
__
* Again, read the editorial, but it concerns "opt-out" measures for certain union dues and fees. Previous legislation and court rulings had approved the practice of unions withholding dues unless individual members "opted out." This was part of the larger balance of union and corporate power that has been worked out in legislation and court rulings over the past century. Samuel Alito, for the majority, decreed opt-out an unacceptable part of the balance and said that unions must switch to "opt-in."

** You can try this at home. Pick a country and describe a sequence in which:

• First, the presidential election is decided by five people, who don't even try to explain their choice in normal legal terms.
• Then the beneficiary of that decision appoints the next two members of the court, who present themselves for consideration as restrained, humble figures who care only about law rather than ideology.
• Once on the bench, for life, those two actively second-guess and re-do existing law, to advance the interests of the party that appointed them.
• Meanwhile their party's representatives in the Senate abuse procedural rules to an extent never previously seen to block legislation -- and appointments, especially to the courts.
• And, when a major piece of legislation gets through, the party's majority on the Supreme Court prepares to negate it -- even though the details of the plan were originally Republican proposals and even though the party's presidential nominee endorsed these concepts only a few years ago.

How would you describe a democracy where power was being shifted that way?

Update Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection."

Update^2 Richard Nixon also observed the "norms" in stepping aside rather than challenging the hair's-breadth 1960 election results, which many of his supporters were sure had been rigged. Also he deferred to the Supreme Court when they ordered him to hand over his secret White House tapes. But that was, notably, a unanimous Court decision, not the one-vote-margin strictly partisan results we've had in recent controversial cases. [More on the struck-out part later.]

Also: from opposite ends of the pedantry spectrum, some people have written to ask what this foreign-language nonsense is doing in the title, and others why it's not capitalized the way "real" French would be. To the first: of course this is derived from the famous L'etat, c'est moi, which you can look up. To the second: this is Atlantic "house style." In our web posts all "significant" words in a title are capitalized, excluding "of" and "and" but including all verbs and any word coming after a colon. Now you know.

The Congressional Research Service is a non-partisan arm of the Congress whose purpose is to provide well-researched answers for questions raised by members of the Senate and House. This week it put out a report on another sign of increasing public dysfunction: the mounting number of vacant seats on the Federal judiciary, for both district courts and circuit-court appeals judges. They are vacant mainly because of the increasing difficulty of getting nominations approved by (you guessed it) ... the U.S. Senate.

Refreshingly, this is not strictly a partisan issue! Senate showdowns over judicial nominees have ramped up under both George W. Bush and Barack Obama. This chart shows the percentage of nominees who were finally approved by "roll call" vote in the Senate. The significance here is that back in the Reagan and first George Bush administrations, virtually all nominations were approved by voice vote -- ie, in an uncontested, pro-forma way.


In this chart we see that the current Republican Senate minority, under Obama, has done essentially what the Democratic Senate minority began doing under Bush: forcing nearly all nominations to a contested vote.

But something has changed under Obama, according to the report. He is the only president in the past few decades (most figures go back to Reagan) to have more seats vacant as he began his re-election year than he inherited when he took office.

This chart, which covers appeals-courts judges, looks a little confusing, but its main point is: Clinton and George W. Bush ran for re-election with their appointments-and-confirmations staying ahead of deaths, retirements, creation of new posts, etc. They spent their first few years filling more seats than opened up. Clinton inherited 17 vacancies, and had 12 left when he ran. Bush inherited 26, and had 17 left in his re-election year. But Obama inherited 13 open seats -- and at the start of the year had 16.

Here are two quotes from two 40-ish Harvard Law School graduates back in 2005. They make for a very interesting comparison now. First, a few words of set-up:

I mentioned recently, in an item about the possible Roger Taney-ization of Chief Justice John Roberts, the fascinating time-capsule quality of a Washington Post story about the vote on Roberts's confirmation, in 2005. Roberts (who had just turned 50) was approved by a 78-22 margin, with all Republicans voting in favor and the Democrats split evenly, 22 for and 22 against.

The Post story discussed the motives and rationales of the leading Democrats in the Senate for voting the way they did, and considered the ramifications for the later ambitions of several of them, including Sens. Biden, Bayh, Clinton, etc. It also discussed the views of Sens. Chuck Schumer, Lindsey Graham, Jon Kyl, et al -- but did not even mention one of the Democrats opposed to Roberts. This was of course the 44-year-old freshman senator from Illinois whom Chief Justice Roberts would swear in as president less than three and a half years later. It is one more reminder of the out-of-nowhere quality of Barack Obama's rise. 

A reader has just sent in a link to a WSJ item from 2009, which quoted Obama's stated reasons in 2005 for opposing the Roberts choice. Given what we know about Roberts from his six-plus years on the Court, and what we have learned about Obama, it makes worthwhile reading now. Here are passages from Obama's 2005 statement of opposition to Roberts, with emphasis supplied by the reader:

"The problem I face...is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court... what matters on the Supreme Court is those 5% of cases that are truly difficult.

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.... In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

I talked to Judge Roberts about this. Judge Roberts...did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

Now, compare this with what John Roberts said about himself in his opening statement at his confirmation hearings. Here I've added the emphasis:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

I leave it to you to judge which of those statements from 2005 stands up better seven years later as a guide to John Roberts's temperament and jurisprudence. I will tip my hand in saying: whether or not you admire his role on the court, it is impossible to see how anyone could describe it as umpire-like or "reflecting a certain humility." In the Citizens United ruling, he and his allies set out to answer questions the case itself did not necessarily raise, so as to overturn precedents they considered incorrect. If you're using the umpire analogy, it would be as if someone behind home plate suddenly yelled "Foot fault!" about a tennis match he saw out of the corner of his eye, with "Pass Interference!" and "Icing" calls thrown in to boot. The potential overturn of the Obama health care law may be desirable or not, according to your own views -- but it is anything but "humble."

I mention this mainly because of the apposite pairing. We have two men who now sit atop two of the three branches of the government. They both laid down markers seven years ago on how one of those men was likely to perform once in office. One of the predictions seems a lot more prescient than the other.

You know that an analysis of modern politics is careening toward "false equivalence" territory when it says that "extremists of the right and left" are, in their symmetrical and indistinguishable way, messing things up for the rest of us.

I've kept looking for a particular data-point that would substantiate the idea that today's dysfunction really is symmetrical: the moment when "extremists on the right" would crack down on one of their own for rigid and inflexible views. There have been inklings: for instance, Newt Gingrich's line early in the campaign that "right-wing social engineering" via the Ryan Budget was as bad as the left-wing kind; also, numerous Republicans' attempts to distance themselves from pure birtherism. Or the general GOP admission that Sarah Palin was perhaps not the best possible choice for VP. Jon Huntsman's "call me crazy" Tweets and comments don't quite count, since the more such things he said, the less he seemed connected to the party itself. A similar "he's not really speaking for the party" discount must be applied to Ron Paul's consistent and admirable critique of neocon warmongering.

But now there is an illustration! The Wall Street Journal's own editorial page -- the heart of the heart of the brain of the movement -- has cautioned a freshman Republican Congressman about the know-nothingness exemplified by his attempt to gut a crucial part of Census Bureau surveys.


You also have to admire and love the way the Journal couched the point, emphasis added:

Every now and then the GOP does something that feeds the otherwise false narrative of political extremism....

Since the political class is attempting to define the GOP as insane and redefine "moderation" as anything President Obama favors, Republicans do themselves no favors by targeting a useful government purpose.[!!!]

Artfully put. Still, good for the Journal in speaking up on behalf of actual knowledge, which a government agency happens to produce. Plus, among the good items on the WSJ editorial section yesterday:

- Reprinting a properly astringent Forbes item by Rich Karlgaard (who fwiw is an experienced Cirrus SR22 pilot) on the decline of America as displayed by the Facebook IPO. Eg, as point #3 of 7:

 3. Facebook left nothing for the common investor. The insider pig pile of PE firms and celebrity Silicon Valley angels took it all...When Microsoft when public in 1986, its market value was $780 million. Microsoft's market value would rise more than 700 times in the next 13 years. Bill Gates made millionaires of thousands of ordinary public investors. When Google went public in 2004 at a $23 billion valuation, it left less on the table for you and me. Still, if you had invested in Google then and held your stock, you would be sitting atop a 9x return. Zuckerberg and his Facebook friends took it all.

- Bonus point, also from yesterday's WSJ: an editorial that is the strongest evidence yet that Chief Justice John Roberts is feeling the heat and suspecting that he will be cast as the modern Roger Taney (right -- look it up) if, after what he did with Citizens United, he overrules the health-care law. The evidence is the editorialists' entreaties that Roberts pay no attention, none at all!, to accusations "that if the Court overturns any of the law, he'll forever be defined as a partisan 'activist.'"

They're right, of course. How could anyone possibly think that John Roberts -- he of the forelock-tugging "I just call the balls and strikes, ma'am" / country-boy / Uriah Heep self-presentation at his confirmation hearings seven years ago -- would run the slightest risk of being considered a result-oriented political operative just for ensuring that big rulings always come on out in favor of his political allies. Ignore this carping, Mr. Chief Justice. Ask yourself, WWRBTD*!

[Update Just now I see on Fox News a panel whose whole subject is the threat that liberals will "blackmail" Roberts into feeling that it would be a "historical error" and overreach for him to engineer an overturn of the law. I take this as a sign that "Roberts as the next Taney?" meme is getting through. In a different way, Reagan's solicitor general, Charles Fried, has been sending a reuptational warning signal to Roberts.] [* The key to WWRBT do is that Taney's middle initial is B.]

[Update-update. The Washington Post account of the 78-22 vote on confirming Roberts has this fascinating historical note. Here's the passage explaining why some Democrats voted for Roberts and some voted against:

 The Senate Democrats' 22 to 22 split illuminated the influence that presidential politics and red-state, blue-state considerations play in a party struggling to end nearly a decade of unbroken GOP control of Congress. Among those opposing Roberts were presidential aspirants who typically veer to the center but now are eyeing the liberal activist groups that will play key roles in Iowa, New Hampshire and other early-voting states in 2008. They included Sens. Evan Bayh (Ind.), Joseph R. Biden Jr. (Del.) and Hillary Rodham Clinton (N.Y.). Also voting no were two senators facing potentially tough reelections next year in states with powerful left-leaning groups: Maria Cantwell of Washington and Debbie Stabenow of Michigan. Maryland's Democratic senators voted against Roberts.
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Democrats voting for Roberts included several facing reelection contests next year in states that Bush carried twice: Ben Nelson of Nebraska, Bill Nelson of Florida, Robert C. Byrd of West Virginia and Kent Conrad of North Dakota.

What's interesting here? The name of freshman senator Barack Obama (Ill.) did not even appear in the story.

How do our current political struggles look from outside? Here is a note from a reader in Holland, in response to The Hill's (never corrected) headline about the 51-47 "defeat" of a bill in the Senate:

The reader says:

I really think this is much more important than many people realise.

What this headline "Senate defeats Democrats' measure to kill off 'Big Oil' tax breaks, 51-47"  demonstrates once again, and the news coming out of the PPACA Supreme Court hearings this week also shows, is that we are witnessing what is effectively a conservative coup d'état.

The Right holds the majority in the House and uses it, as is morally their right. But in the Senate we see the minority filibustering  any legislation emanating from the majority, regardless of how conservative that proposal is fundamentally. It strikes me as nothing more than a scorched earth policy, and profoundly undemocratic. This is not a loyal opposition; it is a rejection of the legitimacy of the elected majority.

And the reporting from the Supreme Court has been profoundly shocking - with conservative justices spouting tea party/talk radio talking points about broccoli and cell-phone mandates, and non-existent Cornhusker Kickbacks.  Scalia's 'originalism'  is being demonstrated to be fundamentally hollow and partisan.

I am not an American and do not live in the US. But what is happening in the world's most important and powerful democracy is shocking and frightening in the absolute, and does concern the rest of the world.

From a New York Times account of a Supreme Court colloquy on what will happen when -- OK, "if" -- five or more Justices vote to overturn the individual-mandate provision in the Obama health care bill:

Justice Antonin Scalia [right, from Wikipedia] said an analysis of how to proceed could not be divorced from the realities of the political process in Washington, which he said was beset by "legislative inertia."

"My approach would say if you take the heart out of the statute," he said, "the statute's gone."

He explained his reasoning: "You're not going to get 60 votes in the Senate to repeal the rest. It's not a matter of enacting a new act. You've got to get 60 votes to repeal it. So the rest of the act is going to be the law."

Sigh. For those joining us late: according to  -- what's it called again? Oh, yes, the "Constitution" -- it takes a simple majority in the Senate to get things enacted, or repealed. These days that means 51 votes, not 60. Could Scalia have been thinking that 60 votes are necessary to override a presidential veto -- which is what a repeal of the health care law would involve if President Obama remains in office? No. Under that tricky "Constitution" again, a veto override takes a two-thirds vote in the Senate, or 67 votes, plus two thirds of the House as well.

If he wasn't referring to an override, I guess the answer is that even a sitting Justice on the Supreme Court has fully internalized the modern de facto amendment of the Constitution under which "you've got to get 60 votes" to get any business done, because business of any consequence will be filibustered. And of course he's in a position to tell us what the Constitution "really" means.

I fully realize that this was not the most egregious comment to come from the bench yesterday. On that I give you our own Andrew Cohen and Derek Thompson -- or the American Prospect's (and recently the Atlantic's) Garrett Epps, or Slate's Dahlia Lithwick, or the New Republic's Jonathan Cohn, or  the New Yorker's John Cassidy or Jeffrey Toobin, and down through a list that could cover 50 additional names. These may bleak days for jurisprudence, but they are brighter if you think about the way today's Internet-based news system improves on the range, depth, timeliness, and traceability of analysis of public events. (Traceability? Here are transcripts of all three days' worth of arguments, downloadable and searchable from many places including our site.)

I will try to add my own log to this pyre of analysis later on. For now, this is just a note of how Scalia has yet again expanded our understanding of "originalism."

After previous items here and here, some updates from readers:

1) Kristin Stoneking, minister of the UC Davis Christian Association, is the woman seen in a now-famous YouTube video walking alongside UC Davis Chancellor Linda Katehi through ranks of stonily silent student protestors. On her site she has posted several behind-the-scenes accounts of what the Chancellor has been doing, and thinking, and why, plus what might come next. There are a number of surprising touches there, which I will let you find for yourself.

2) Several readers have written in to show off point out that I shouldn't really describe the modern phenomenon of a camera-in-every-hand as "panopticon society" but rather as "catopticon society," or "sousveillance." The theory here is that Jeremy Bentham's original panopticon concept (which I actually wrote a college paper about, so there!) involved one central authority watching everyone all the time. Whereas "sousveillance," a genuinely nice play on "surveillance," means everyone photographing everyone and everything, and then sharing all the images. If you'd like to read more about this and the related "Catopticon," from the French computer scientist Jean-Gabriel Ganascia (in English), here you go.

3) On the storm-trooperization of local police forces, which has been going on for years and whose results are so dramatic in Occupy footage from Davis and elsewhere, a reader sends this report and photo:

 In your post on the terrible incident at UC Davis you briefly discussed the militarization ("
storm troopers" as you called them) of the police.  I wanted to show you just how far this has gone. 

This summer my girlfriend and I toured the U.S. for a few months.  We stopped in Galax, Virginia, a tiny hamlet in western Virginia with (according to Wikipedia) a population of 7,042 as of the 2010 census.  When we got to town there was a street fair going on with a huge bounce-house, a (sad) pony ride, and vendors of fried food. 

In the middle of all of this was displayed the pride of the Galax police.  I've attached pictures for you to see what I mean.  It is called a Lenco Bearcat, a 4WD V10 that is essentially a tank.  According to the spec sheet proudly displayed on the vehicle it can withstand multiple hits from a 50 caliber gun.  You've may have seen one of these guns before, but they can kill from 2500 meters away and the bullets are about 6 inches long.  Wikipedia has a nice bullet comparison here.  The vehicle is armored and has 4 "gun ports".
 


I probably don't need to say it, but this is a tool of the Galax police force intended to protect it's citizens from the beautiful rolling countryside around them.  

What does it say about the fears of the townsfolk that they would consider this purchase a point of pride?  What justification can there be? [Update: the Galax police chief replies.]

More than that, I suspect that an entire industry has been created to sell this to police forces.  Such misdirected economic incentives are very difficult to dismantle in the same way that hiring outside contractors in Iraq has caused the mushrooming of the private security firm whose largest actors can effectively lobby office-holders to continue getting military contracts.  A terrible cycle that looks for justification for its existence (beyond greed).

More about militarization after the jump.

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See numerous UPDATES below.

In case you haven't yet seen the YouTube footage of what happened yesterday at UC Davis, here it is. The first minute has the main drama:
 


Let's stipulate that there are legitimate questions of how to balance the rights of peaceful protest against other people's rights to go about their normal lives, and the rights of institutions to have some control over their property and public spaces. Without knowing the whole background, I'll even assume for purposes of argument that the UC Davis authorities had legitimate reason to clear protestors from an area of campus -- and that if protestors wanted to stage a civil-disobedience resistance to that effort, they should have been prepared for the consequence of civil disobedience, which is arrest.

I can't see any legitimate basis for police action like what is shown here. Watch that first minute and think how we'd react if we saw it coming from some riot-control unit in China, or in Syria. The calm of the officer who walks up and in a leisurely way pepper-sprays unarmed and passive people right in the face? We'd think: this is what happens when authority is unaccountable and has lost any sense of human connection to a subject population. That's what I think here.

Less than two months ago, it seemed shocking when one NYPD officer cavalierly walked up to a group of female protestors and pepper-sprayed them in the eyes. The UC Davis pepper-sprayer doesn't slink away, as his NYPD counterpart did, but in every other way this is more coldly brutal. And by the way, when did we accept the idea that local police forces would always dress up in riot gear that used to be associated with storm troopers and dystopian sci-fi movies?

If you watch the whole clip, you see other police officers beginning to act "human" in various ways -- taking off their riot helmets, being restrained rather than unbridled in use of force, a few of them even looking abashed or frightened as they walk off.

This Occupy moment is not going to end any time soon. That is not just because of the underlying 99%-1% tensions but also because of police response of this sort -- and because there have been so many similar videos coming from cities across the country.

UPDATE: A letter from a young UC Davis faculty member asking the resignation of the university's chancellor, Linda Katehi; and a roundup of reaction and videos on Daily Kos. [And Katehi has now put out a statement of her own.]

Update 2: Brian Nguyen, of the UC Davis student newspaper The Aggie, has posted a large Flickr collection of photos of the confrontation. With his permission, here are two samples: the policeman as he calmly pepper sprays the seated students, and the students with the burning orange spray still on their faces.

Update 3: Peter Moskos, son of the late, wonderful Charles Moskos and himself a one-time policeman who is now an academic, has an insightful short piece for The Washington Monthly on what the episode shows about police training, or lack of it.

Update 4: The police are apparently claiming, though I don't have a link at the moment [info here], that the policeman used the spray in self-defense and at a tense moment. Check out this immortal photo if you hear that claim. Now, Brian Nguyen's photos:
 

In several items (first, second, and third) about last month's horrific episode in Foshan, China --  in which 18 people walked or biked past an injured 2-year-old lying in the road, until she was run over a second time and mortally wounded -- I mentioned that such "not my problem" behavior was a failing of human nature rather than of any one nation's culture. But the uproar over the episode inside China showed that it touched a nerve there. Specifically, it was a trigger for mounting concerns about the social and cultural effects of the me-first rush for riches these past few years.

It's worth recognizing how much the details of the grand jury report of (alleged) multi-victim, multi-year sexual predation in Penn State's football program make it a moral parallel of the toddler video. People who were not themselves "to blame" for a terrible situation also did not take responsibility for rescuing its victims.

The specifics of the moral choice for onlookers obviously differ: in China, it was a random assortment of people faced with an out-of-nowhere decision in a few seconds of real time. At Penn State, it was stewards of an organization convincing themselves to turn a blind eye over a period of years. But the results -- implicit decisions to distance oneself from responsibility for other people's suffering -- are similar. And while the Penn State case could be a trigger for larger concerns -- about bigtime sports culture, about the God-coach tradition of which Joe Paterno has been a main example, about unaccountable male-run hierarchies that seem to attract pederasts -- mainly we're reminded of human failings again. I tell myself that I would never have walked by an injured toddler -- or that I would never condone an episode like the one at Penn State quoted after the jump. But people who think of themselves as "good" did these things, which is mainly a sobering reminder of what we're all capable of. Mon semblable, mon frere.

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Adrian Lesher, a staff attorney with the NY Legal Aid Society, writes with the following observation about police abuses-of-power during the Wall Street protests, noting that he's speaking not for Legal Aid but for himself:

Over the years I've mentioned several times the heartbreaking murder case of Tom Wales. That's him at right. He was a career federal prosecutor in Seattle, who at age 49 was shot dead in his home, by a rifleman through a window, as he worked at his computer at night. I knew him slightly; his brother-in-law is one of my closest friends but doesn't know I'm posting this.

Tom Wales was killed on October 11, 2001 -- nearly ten years ago. If the national media had not been all-consumed with the 9/11 attacks and their aftermath, this would have been a much bigger national story. From the start police assumed that he was shot because of one of the cases he was pursuing. He is thought to be the first federal prosecutor ever killed in the line of duty. For previous items on the case, see here, here, and here. Jeffrey Toobin did a very good article about Wales, the killing, and the still-inconclusive investigation in the New Yorker. 

It's been so long since I've caught up with the pepper-spraying coward cop story from this weekend that, way back then, his real name wasn't even known. For now I won't drum in his name and will just stick with "coward cop" -- because it was the cowardice, as much as the cavalier cruelty, that was so breathtaking in the original video. A cruel or sadistic cop would have blasted pepper spray into the eyes of penned-up civilians (who all were young women) and then stood and stared them down or laughed at them. A coward would blast them and then turn quickly away and try to melt into the crowd, as this one did.

Brief summary since then, with a few reader messages:

1) Of course, the coward-cop has been named. 

2) This afternoon new video surfaced, via Daily Kos, indicating that he'd done more or less the same thing to other civilian protestors that same day. Similar spray in the face, similar slinking away. Difference is that the objects of the spray weren't penned this time.



3) I may have missed it, but it appears that the city officials were paying no notice to this cowardly behavior until reports of the second episode surfaced.

3A) According to the NYT City Room blog, one of the coward's colleagues explained that it wasn't really two "separate" incidents:

>>Inspector Roy T. Richter, the head of the Captains Endowment Association, the union that represents the upper echelons of city officers, said that he believed the second snippet of video was part of the same episode as the initial incident.

 [And also:] Inspector Richter continued: "[The coward's] actions that day were motivated by his concern for the safety of officers under his command and the safety of the public. The limited use of pepper spray effectively restored order without any escalation of force or serious injury to either demonstrator or police officer."<<

Convincing. Especially after he slunk away and left one of the blue-uniformed cops saying (according to many accounts I've received and this in the Village Voice) "He just fucking  maced us."

4) Although it would not be evident from these videos, the NYPD actually has a code of conduct / set of rules of engagement for using pepper spray. You can get a PDF of a report that includes it here. It's worth looking at in detail. (Also mentioned on Atlantic Wire.) To skip to the punch line: nothing that the coward-cop did, at least as shown in these videos, is in accord with these guidelines.

5) You've probably already seen it, but here's an account in the Boston Review from someone who was maced.

6) From a reader in Estonia:

>>About the video of the abusive behavior of New York City police officers: I omit the word alleged, because the video is proof enough that something in the most liberal parts of United States is wrong, since I always up to now felt that this behaviour belongs to Oklahoma and not into a metropolitan culture...

I have made a mental promise never to visit the United States.<<

7) From a reader in the US:

>>This is Dr. XX, a retired NYC academic and still active in the NGO community at the UN. 

This video has half a million hits at YouTube, is all over the international media (along with others about the U.S. police that day)-- a total of  10,000,000 hits at Google re: the Wall Street Protests.  It is an international embarrassment and being made a big deal of by those who want to compare this (not to mention major U.S. media not covering the protests until the violence [and still no CNN or MSNBC]) to our crusades re:  Egypt, Syria. Libya and Iran.  They are calling it American corporate censorship.  Even if that seems exaggerated, that is what it is being made out to be.<< 

8) A message typical of a large number I've received.

>>I'm a 50 year old mother from North Carolina, worked in politics for years (Gary Hart in 84 and 88, then the DSCC), but now work as a tennis instructor.  Last week, my 15 year old son participated in day one of Occupy Wall Street and I've been following ever since.

I'm frightened, and outraged, by what's going on in this country, and it's repercussions throughout the world.  I'm considering quitting my job, selling my house and becoming an activist, I just can't sit back and watch this.  I'll be in DC for the October 6th occupation of Freedom Plaza.<<

Enough for now. Coward.

And of course, it's not just him. What are you going to do about it, officials of NYC?