“We must disenthrall ourselves, and then we shall save our country.”
Why write a blog, and why start now?
The answer is that the fall of 2016 marks a pivotal moment in American history. Two weeks after the election of an imbalanced narcissist to the Presidency of the United States and Commander in Chief of the world’s largest military, many people are still sorting out what happened to our country and what, if anything, can we as individual citizens do about the situation.
This blog is my attempt to plant the flag and say that we the people , “even we here” as Lincoln said, have a role — perhaps the key role — in shaping the future at this critical time.
Addressing Congress at the end of 1862, as the Civil War dragged on in a fashion more prolonged and bloody than anyone had imagined, Lincoln urged Congress to take note of the circumstances and embrace the opportunity and responsibility to change history:
The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew, and act anew. We must disenthrall ourselves, and then we shall save our country.
Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation. We say we are for the Union. The world will not forget that we say this. We know how to save the Union. The world knows we do know how to save it. We — even we here — hold the power, and bear the responsibility.
“Even we here.” I’ve always loved that phrase. It is an affirmation that no one should hide and run for cover, hoping that responsibility for making choices can be dodged. We here, yes you and I, have decisions to make. We have choices to make. We must be heard from if this great experiment we call America is to last. “Even we here” — you and I — have a job to do. While Lincoln was speaking to Congress, I’m using the phrase in a larger sense, the sense that we the people must think and act like things depend on us.
“We must disenthrall ourselves.” Another Lincoln gem. What did he mean by that colorful phrase? In today’s language, we might say “we must get over ourselves” or “stop thinking it’s all about us.” He urged us then and would urge us now to get over self-centered and tribal thinking to see what’s at stake: the future of democracy. “We will be remembered in spite of ourselves,” i.e., our limitations, our hesitancy, our lack of courage. A few months later, he put the question this way: the issue “whether government of the people, by the people, for the people” can survive. It was an open question. It still is.
The “American Experiment” (whether a country on a continental scale, comprised of vastly diverse groups and interests, can democratically self-govern) is not over. It remains an experiment. It is a story whose ending we can impact. Will this last? “Is America possible,” as Vincent Harding asked? We have the privilege and responsibility to influence how that question gets answered. You and I, “even we here.”
One hundred fifty four years later, another tall politician from Illinois — also vilified both by his opponents and criticized by his political allies, like Lincoln — had this to say about our current situation, when asked, in essence, how do we deal with this. His extemporaneous response was less scripted than Lincoln’s formal address but no less eloquent:
“What I say to [my daughters] is that people are complicated. Societies and cultures are really complicated. . . . This is not mathematics; this is biology and chemistry. These are living organisms, and it’s messy. And your job as a citizen and as a decent human being is to constantly affirm and lift up and fight for treating people with kindness and respect and understanding. And you should anticipate that at any given moment there’s going to be flare-ups of bigotry that you may have to confront, or may be inside you and you have to vanquish. And it doesn’t stop. . . . You don’t get into a fetal position about it. You don’t start worrying about apocalypse. You say, O.K., where are the places where I can push to keep it moving forward.”
In its own way, this is a repetition of the beauty of Lincoln’s Second Inaugural, which acknowledged our complexities, our rivalries, our bigotries — our messiness — but summoned us to a better place, and called upon our “better angels.”
So yes, it’s up to us, the people, to determine whether or not we can succeed in self-government. Not just our elected officials in Congress in their paralyzed dysfunctional state. No it’s just us. Just you and I. “We here.”
Future posts will express some thoughts on what we can do, as things evolve.
My apologies for a long period of silence in this space. 2020 has been a year we will all remember, with the Covid-19 pandemic, adjustments to our work lives and family patterns, and of course the incessant distractions of the Trump Presidency. I should also admit to the reality that, like a true gaslighting victim, I simply could not keep up. There is an other-worldly quality to this presidency: can it really be this mad? Are there really 40 percent of the American population who think this chaos and cruelty is worth repeating? When I hear well-educated people say that Democrats (all of them, presumably) are a greater threat to democracy and public health than is Trump, I entertain thoughts of insanity, a version of what the right sometimes calls “Trump Derangement Syndrome.” We cannot possibly be starting with the same set of facts. Or is tribalism this deep?
There’s a long list of things I’d love to have written about recently: the contorted display of hypocrisy of the United States Senate in rushing through the nomination of Amy Comey Barrett two weeks before a general election and during a pandemic, after refusing Merrick Garland a hearing nine months before an election; the ever-widening influence of the Electoral College’s distorting impact on our elections and its ties to the country’s history of slavery, and the hypothetical scenarios of what might happen if the country has yet another disputed election and/or an incumbent who refuses to concede defeat, to name a few.
But today I’ll simply share some thoughts I posted on my Harvard Law School reunion page, where we were asked to reflect on the current state of the world. My words reflect both my anxiety about what we seem to be losing, and — I hope — my resolve to stay in the fight for a better world.
“I confess to experiencing no small amount of heartbreak as I write this in late October, 2020. I care about democracy; I care about fairness and justice for all; I care about the integrity of the law; I care about the health of the planet. I see all under threat to a degree that is unprecedented in my lifetime.
Somewhere in my youth, I developed the notion that we are entitled to progress as an inexorable, inevitable, process — essentially a right. I was setting myself up for disappointment I now see. One person’s progress is another person’s threat, it turns out, so there is nothing inevitable about any of this.
The distinction between hope and optimism is one I find helpful. There are reasons to be hopeful, despite all the evidence that makes optimism seem like fanciful denial. I try to remain hopeful, and add “my spoonful” where I can — writing blogs and letters to the editor, making targeted contributions, speaking up when I have a chance, and trying to model what I think responsible citizenship looks like.
Before I was a lawyer, I was briefly a history teacher. United States history is a passion. I am struck by the degree to which the tensions we are currently experiencing are echoes of past tensions unresolved and past wounds unhealed. Our classmate Bryan Stevenson has so eloquently spoken of America’s twin sins of genocide and slavery, and how our refusal to confront what lies at the core of those original sins is, if we are honest enough to admit it, at the core of our current troubles. We don’t want to face the dark side of our past and what it has brought to our present. So if these days seem like what you imagined the 1850’s to be like, you may not be wrong! See https://bit.ly/3jo3GZ3 (the “Know Nothing” Party).
Let me end with some hope: I hope to see Citizens United overturned and the Supreme Court admit that they got it wrong: money is not speech. I hope to see an end to the death penalty. I hope see an end to the Electoral College. I hope to see every person’s vote count equally some day. I hope to see the U.S. Congress become a functional organization. I hope to see the Pentagon have to fight for funding as hard as schools do. I hope to be around when there are no more videos of unarmed people being killed in encounters with police. I hope to see health care accepted as a basic human right. I hope to see an end to voter suppression. I hope to see an end to gerrymandering. I hope that the pursuit of truth will make a comeback. I hope to see the day when people realize that with eight billion of us sharing a fragile place, we need to do better.”
Hope is a start. But moving things forward takes more than prayer (though some might disagree.) Contributing “one’s spoonful” requires action. It requires getting in the arena and risking rejection and injury. It requires the understanding that only by collective action do things change, and collective action means you and me getting out of our chairs and our fingers off the keyboard and joining hands with others in the fight for a better world. So forgive me for pausing here, I need to go make some phone-banking calls.
What’s at stake in the circus sentencing of Trump confidant Roger Stone.
Today is the day Roger Stone is scheduled to be sentenced in Washington, D.C. The event, if it is not delayed, promises to be a circus. Why is that?
For starters, Roger Stone is a bit of a walking circus act in his own right. After a jury convicted him a few months back of multiple serious felonies in connection with the 2016 election investigation, he emerged from the courthouse grinning, with a full Nixonian double-peace-signs, arms extended, reminiscent of Tricky Dick’s helicopter departure on the White House lawn. Was being convicted of witness tampering and obstruction of justice something to celebrate?
Maybe Stone didn’t take the trial seriously. Maybe he knew something we wouldn’t know until later — that the President would have his back no matter what. It turns out, as we’ve seen in the last few days, that the Tweeter in Chief went ballistic when he learned that the career prosecutors on the case did what their jobs required: filed a sentencing memorandum asking for several years incarceration for Mr. Stone, as suggested by the carefully promulgated U.S. Sentencing Guidelines that prosecutors and judges must use to guide the sentencing process.
Trump demanded greater leniency (for a defendant convicted of crimes related to the President’s election, no less), and in an astonishing move, the Attorney General of the United States instantly ordered that a new sentencing memorandum be filed, recommending a far lighter sentence. The reaction was swift. The four line prosecutors resigned from the case, with one even resigning completely from the Department of Justice. One can almost hear their internal thoughts: “When I took an oath to uphold the Constitution of the United States, this is not what I signed up for.”
Then, long before newspapers published editorials or the American Bar Association expressed alarm, alumni from the Department of Justice circulated a draft letter of protest, demanding the the Attorney General resign and asking that political considerations not enter into the administration of justice. I’m proud to say that I was one of the first former DOJ lawyers to sign the petition, which at current count now has over 2500 signatures, including those of several former United States Attorneys and high-ranking DOJ supervisors. The full text of the letter can be found here: https://bit.ly/2SL9z8s.
To the non-lawyers who may be reading this, please understand that this is not an everyday thing. Many of us interact with Department of Justice lawyers on a daily basis. It could, in theory, have an impact on our professional lives and even our clients’ cases if our signing the letter were received poorly. We don’t just write letters demanding that the Attorney General resign for nothing.
So what was the big deal? And what is the big deal today at the sentencing?
As my colleagues and I wrote in a more detailed write-up on our website (https://bit.ly/3bTjvo9), at stake is nothing less than the fair administration of justice. We cannot have Presidents ordering Attorney Generals to go easy on their friends and to go after their political opponents for reasons having nothing to do with the law or the facts. We once learned that lesson in the Nixon Administration, where the outrage over the Saturday Night Massacre hastened the President’s resignation. (Ah, but that was before Fox News, when the mainstream media did its best to call things down the middle…) It seems we’re due for a reminder that things simply can’t work this way.
This is not to say that it won’t work this time, just that it shouldn’t. It could well be that Trump, emboldened by his impeachment acquittal, will get his way in the matter. Judge Jackson seems unlikely to fall for DOJ’s sudden change in recommendation. But even if she follows the original DOJ recommendation, Trump seems to see no impropriety in the notion of pardoning his friends when they are convicted of doing his bidding, frequently floating such trial balloons on his Twitter feed. His most recently clemency decisions certainly suggest that he is unafraid to intervene where most Presidents would not consider intervening.
We’re better than this. We have to be. While our democracy and system of laws is far from perfect, if we allow the administration of justice to sink to this level, all of us will suffer. The precedent will always be there for future politicians to consider, once someone has proven the point that the deed can be done. More important, confidence in the legal system will take time to restore after it has been proven to be vulnerable to this kind of interference. It is an open secret that our legal system highly favors those who have money. Do we really want to have it also favor whatever corrupt executive is willing to bend it to his will?
Our system of laws must be fairly administered. Equally important, it must be perceived to be fairly administered. Otherwise, what witness would ever bother to come forward and tell the truth? What whistleblower would dare stick her neck out to right a wrong? What’s the point of participating in a process that has no integrity?
In this same vein, conflict of interest laws require that actual conflicts be avoided or disclosed, and also that lawyers and judges avoid even the appearance of conflicts of interest. The perception of unfairness is as toxic as the actual unfairness.
Democracy is not self-executing. It will hold together only if the people demand that it hold together. That means each of us has to do our part by voting, by writing letters to the editor, by marching, by speaking to people willing to listen, by doing what we can. We, “even we here”, have to add our measure of commitment to democracy in whatever way works for us.
For me this week, it was writing about a Department of Justice populated by fabulous career civil servants being let down by corruption from the top. Integrity and fairness is what is needed, and what we must insist upon.
“Mr. Finney” to most of us, Redmond C.S. Finney or Reddy Finney was a larger-than-life educator, coach, and mentor.
It’s been almost a month now since the passing of a man who was tied for first as the most important mentor in my life. The larger-than-life former Headmaster of Gilman School, the record-breaking athlete, the pioneer of racial integration in school systems, and the role model to thousands of young men in Baltimore passed away peacefully in Maine, at age 89. As the word quickly spread, people paused, teared up, reflected, and put their internal flags at half-mast. Our north star had gone dark.
Or so we imagined.
In reality, Reddy’s guiding hand will always be with us, and has been with us for decades since we graduated from Gilman. So many Gilman alumni and others in his orbit have openly articulated that they have lived their lives with a little mantra inside their heads: WWRD – what would Reddy do? Some of us adorn our offices with photographs of him as a reminder of that moral compass, and of the character of a man who changed our lives.
How is it that so many people, literally thousands, can feel the same profound sense of personal connection to and gratitude for a man who impacted their lives, despite all their differences? What was it about him that made that possible? How is it that 43 years after our graduation, 61-year-old men would say publicly to each other that “I find that cannot stop crying”?
This is my attempt to put the answer into words, and to express my gratitude.
A few years ago, one of Reddy’s grandchildren asked me, in effect, “what’s the big deal”? Why is he so beloved? To her, he was a soft-spoken and big-hearted grandfather, but who doesn’t love their grandfather? Why, she asked, do so many Gilman alumni speak about him in such reverential tones?
The answer came to me far more easily than I expected, as if I had been thinking about that question my entire adult life. “Because he saw something in us that we couldn’t see and didn’t believe possible. He saw our ‘better selves’ (one of his favorite expressions) and encouraged us to go there, to become that person. We had the sense that we’d be letting him down personally if we didn’t try our best to be better, kinder, more honest, more committed young men. And he wasn’t going to let us fail in that quest. He was going to get us there, have our backs, no matter what. The lift, the inspiration we got from that was so powerful.”
To us young teenage men, so clearly works-still-in-progress, these were life-changing ideas coming at just the right time. Before we could become set in our ways and thinking, or settle for some smaller version of ourselves, here was someone – a big, strong, inspirational someone – who was urging us to think before we acted, to ask ourselves what’s the right thing to do, to embody integrity in our ways of being. He wanted us to become people of character, not in a conformist, one-size-fits-all sense, but to be more intentional about the direction and impact of our lives.
And when we failed to live up to this vision, as we inevitably did on occasion, he did not condemn us or slam us. He would let us know that what we had done wasn’t consistent with who he knew we could be, and that we should do better. This not only guided our future behaviors, it also modeled for us how real men should deal with younger people in their lives who act in disappointing ways. Are some of us better fathers because of Reddy? I have no doubt.
Anecdotes about Reddy’s life are legion. Ask any Gilman alumnus if they have a story to share about him and be prepared to be entertained. There was such a loving physicality to the man. You always knew that if you were in Reddy’s wingspan, you were at risk of being lifted, squeezed, or gently transported by the All-American football center, heavyweight wrestler, and All-American lacrosse midfielder. There was no escaping that aura, that feeling that this adult bear can have his way with the cubs any time he wants – but you can still trust him completely anyway. He commanded your attention both by the power of his moral authority and by that imposing physique and the gentle way he used it.
When we saw this powerful man bending over to pick up trash on campus, or putting his arm around someone in distress, it taught us all so much about what real strength is.
We all live on top of the shoulders of others who nurtured us along the way. Some of us were lucky enough to have had our lives intersect with a man who simply willed us, by the force of his encouragement and persona, to go bigger, to think higher, to be better. What would the world look like if every young person had such an influence at such a vital time?
Thank you, Mr. Finney. Thank you, Reddy. As long as we are alive, we will never forget what you did for us and gave to us. You remain our north star.
Rest in peace, kind soul.
Our last conversation, at the occasion of his grandson’s wedding.
This is a blog I wrote for Thanksgiving for my law practice. I also add a few additional personal notes below it. Have a wonderful weekend. Despite all the difficult news out there, we still do have a lot for which to be thankful!
“As False Claims Act lawyers and lovers of history, we have a certain reverence for Abraham Lincoln, the President given principal credit for conceiving of the need for a whistleblower statute to help stem the tide of contractor fraud during the Civil War.
There are of course many other reasons to admire President Lincoln, the author of some of the most aspirational and inspiring expressions of American political thought, such as the Gettysburg Address and the Second Inaugural Address, and most impactful decisions, such as the issuance of the Emancipation Proclamation and applying pressure on Congress to pass the Thirteenth Amendment (abolishing slavery) before the end of the war, against long odds.
Lincoln is less well known for his role in establishing, on a national basis, the Thanksgiving holiday, that most uniquely American of holidays. He did so in October, 1863, in the darkest months of the prolonged American Civil War.
Thanksgiving had been observed more casually prior to that time, and with considerable variation by region. Colonial settlers here in Massachusetts are credited with celebrating the first thanksgiving celebration in the “New World” in 1621, and George Washington proclaimed a day of Thanksgiving on November 26, 1789 just after the formation of the United States by the ratification of the Constitution.
But in terms of making it a national day of celebration, applicable to all Americans, “in every part of the United States, and also those who are at sea, and those who are sojourning in foreign lands,” Lincoln gets the full credit for urging us to “set apart and observe the last Thursday of November” expressly as a national day of gratitude and “humble penitence.”
It was, like so many of Lincoln’s writings and utterances, aspirational – this was, after all, the end of a third year of hideously brutal and inconclusive Civil War, with casualties mounting to unimaginable numbers, with no realistic end in sight and increasing calls for an end to the conflict even at the price of disunion.
He reminded us that despite all of the distractions of the armed conflict between our fellow citizens, there were still “blessings of fruitful fields and healthful skies.” In the ultimate expression of the-glass-is half-full, he said: “In the midst of a civil war of unequalled magnitude and severity…, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere except in the theater of military conflict.” So he deemed that it would be fitting and proper that these blessings should be “solemnly, reverently, and gratefully acknowledged as with one heart and voice by the whole American people.” His was a call for gratitude, humility, and unity.
We all observe Thanksgiving today in our own unique ways. Some eat turkey and pies; some grill tofu. Many of us suffer through highway traffic to be with loved ones. But however we observe it, we all share, even in these challenging times, ties of the history that binds us together, and the gift of a government that still aspires, in its best days, to be “of the people, by the people, for the people.”
Here at the Whistleblower Law Collaborative, we are enormously grateful for so many things: for our courageous clients, for a free press and the right to speak truth to power, for the quiet and professional ways in which talented but unrecognized government lawyers and investigators do their jobs, for our colleagues in the whistleblower bar, and for idealists everywhere who want to make this world a more peaceful, more fair, and more just place.”
Addendum: On a personal note, let me mention a few of the things that I am grateful for, in addition to those above.
I am grateful for my wife Polly, her steadfastness and her commitment, her love and her beauty, her intelligence, and her mothering of two young women who are oh-so-much-more-unstoppable because of her.
I am grateful for Emma and Eliza, their candor, their humor, their intelligence, their guidance, their commitment to moving us all forward, their kindness to everyone and to me — even when I don’t deserve it.
I am grateful for mentors and educators, who made my success possible: my father (the other Bobby Thomas), Reddy Finney, Fouad Ajami, Nick Littlefield, Chuck Ruff, Mark Lynch, Dale Kelberman, Bob Luskin, to name just a few who helped me along the way. (Wouldn’t it be fun, in some imaginary setting, to get all these people in the same room?)
I am grateful to my Mother, who encouraged my sense of humor, and whose sweetness I feel every day.
I am grateful for my grandmothers, who tolerated my liberalism and saw big things in me.
I am grateful for my skinny-legged sisters, and how they can both love me and call me out in the same breath.
I am grateful for the way in which the Thomas family sticks together, and the Bruce family is finding each other.
I am grateful for medical science, which has saved my life more than once.
I am grateful for tennis, which supplies me endless amounts of diversion and challenge.
I am grateful for my Friday coffee buddies, who for fifteen steadfast years have met every week at 7:00 a.m. to listen to each other, to laugh a bit too loudly, to commiserate about fascism, and to help each other stay positive.
I am grateful for Hope Central Church, and the open and affirming way it welcomes all of us, including “questioning believers” and non-believers alike, and for the inspiration and insight and community it provides.
I am grateful to the Universe, that somehow the molecules and chemicals that coalesced to form me actually happened, and that I get to witness the wonder and improbability of this time and this place, and to be in community with so many people and things that I love.
It’s been twenty-seven years since that nausea-inducing spectacle of rich entitled white men belittling and dissing the very credible Anita Hill, as she came forward to explain how Clarence Thomas had behaved as her boss.
I was an Assistant U.S. Attorney in those days, prosecuting crimes in the Maryland U.S. Attorney’s Office, making credibility determinations on a daily basis. It didn’t seem very complicated in the Hill/Thomas matter to assess who was lying and who was telling the truth. Prosecutors do this all day long. https://wapo.st/2ppZejb (good recent article from a sex crimes prosecutor: “Prosecutors do th[is] regularly, in large part by parsing what’s reasonable and what’s believable through corroboration, details that have the ring of truth and inconvenient facts that are subtle signs of credibility”). I remember expressing to my wife some disgust at the fact that the all-male club of the Senate Judiciary Committee (with no doubt a few sexual secrets of their own) brushed her allegations aside as if she were just making it all up, without bothering to go through any of this basic work that lawyers, investigators, and juries do all the time.
Almost three decades later, here we go again. An ideologically vetted candidate is up for consideration, and the mostly white male Senate Judiciary Committee would rather not hear what Dr. Ford experienced from the drunken teenage version of Judge Kavanaugh. Senator Grassley tried to rush the vote but then Dr. Ford called everyone’s bluff and said sure I’ll testify. Ooops. I guess the Senators will have to listen to what she has to say. Or will they? Will they just be pretending to listen before rushing off to vote? Will they find away to sidestep her appearance altogether? Will having a woman or two on the panel make any difference this time around?
In the wake of the #MeToo movement, it will be telling to see if anything is different in 2018. If Dr. Ford is given the Anita Hill treatment and Kavanaugh confirmed, we will know for sure that not enough has changed, and certainly not in Washington. Kavanaugh may well provide the decisive vote to overturn Roe v. Wade, putting an exclamation point on the extent to which men still want to control women’s bodies – as drunken seventeen year olds or as Supreme Court justices. If such a decision does come from the Supreme Court, it will be (if Kavanaugh is confirmed) an all-male majority writing the opinion, with the women of the Court dissenting. How much more clear can this situation be?
Let’s peremptorily dispense with one anticipated argument we are sure to hear in the days ahead: We Can’t Tell Who’s Telling The Truth. It’s He Said/She Said… No Senator, you can work a little harder than that. Lay people on juries are asked to make these tough calls all the time, and they’re not allowed to just shrug it off. They are told how to figure it out, just like prosecutors and investigators are paid to figure it out.
If this were a court of law, a judge would instruct the jury on how to make credibility assessments of the inconsistent testimony of two witnesses. The jury would be instructed about such things as motive to lie, bias, and interest in the outcome. They would be told to study body language and demeanor, and to use their common sense. Who’s got a real motive to spin this? People are good at this kind of evaluation, it turns out. It’s only when we overthink things or let our biases jump in front of what our eyes can plainly see that we allow ourselves to get it wrong.
Applying those principles Prof. Hill’s situation 27 years ago and Dr. Ford’s situation today, it seems fairly straight-forward: the nominees have a huge motive to deny the accusation because of what they have to lose professionally and reputationally. Their accusers come forward reluctantly (because of the painful abuse they receive through the process), and speak in measured, precise, careful words, corroborated by other evidence and in Dr. Ford’s case, even by a lie detector test. If she is making all this up, why on earth would she describe and name a third person in the room, who could dispute her account? (That’s not a detail she would include if this is just a made up story.)
Of course Kavanaugh is going to deny the event, just like President Trump denies every allegation of entitled male sexual predation. They both know that making admissions, any admission, in this context is to buy trouble. Their calculus is that the blanket denial will cause enough people to say “Gee, it’s disputed, and I can’t figure out who to believe, so I’ll give him a pass.” This is intellectual laziness in its highest form.
The Senate could figure out who’s telling the truth. Juries and prosecutors do this every day in this country. And if the Senate isn’t sure, they shouldn’t confirm. There are plenty of other candidates who don’t carry this baggage.
And one other thing: let’s not treat this like a criminal trial and talk about “innocent until proven guilty.” That’s more intellectual laziness. He’s not on trial; he’s got a cushy job with life tenure. The question is whether we are comfortable appointing someone who a) may have attempted to rape a young girl, and b) is almost certainly lying when he denies that anything happened at all. It would be one thing if he were to say: I was young and immature then, and I don’t remember things the way she remembers them. But if whatever I did caused her the kind of pain she’s describing, I’m very sorry. That’s not what we’re hearing. We’re hearing: This is bullshit; you prove it.
I’m not buying Kavanaugh’s blanket denials any more than I buy Trump’s. If, as I believe, he’s lying, that is quite material to his suitability as a Supreme Court Justice.
Still run by entitled white men, the Senate will now show us whether it has learned anything. If, as I fear, it will repeat its miserable performance of 27 years ago, we will know exactly where we stand and what must change. Any Senator who fails to take Dr. Ford seriously as Professor Hill was not taken seriously should be ready for a backlash.
And the people better be ready to deliver that backlash in the form of votes.
Attempted obstruction is a crime just like obstruction is a crime.
A few days ago, due to some outstanding reporting by the New York Times, we learned that way back in June 2017, President Trump ordered his White House Counsel to fire Special Counsel Robert Mueller, who is running the Russia investigation. Indeed, he wanted to fire him only weeks after Mueller began working, so worried was Trump about where this was all headed. Thankfully, the White House counsel talked him out of this path, refusing to do the deed and confident that Trump wouldn’t do it himself. (He was right.)
I wrote a short comment to the post, mostly to vent about what was so obviously wrong about this situation. I wrote:
“He (Trump) is in so far over his head. He doesn’t understand government and he doesn’t understand how law works (except in its twisted version practiced by the likes of Roy Cohn). So he undoubtedly won’t understand why this news story will be eye-popping — even to a population mostly numbed to the multiple shocks to to the nervous system from this presidency. You see, Mr. President, you’re in office partly because a foreign power unfriendly to us hacked our election in order to undermine your opponent. They succeeded far beyond their initial plans. We the people, yes the people, this is a democracy, have a right to know what went on and who facilitated that historic event. If you had no involvement, as you claim, you should welcome a thorough and credible investigation of the matter — because faith in our elections is important. So, no, you don’t have the right to treat the FBI and the Justice Department like your personal lawyers. They work for us, not for you. You have your own lawyers. These are the people’s lawyers, and you can’t just expect to fire them because you’d rather they not look into things that hurt your “brand.” It doesn’t work that way here in the public sector. The optics of this, Mr. President, couldn’t be worse. You tried to fire a universally respected Republican career prosecutor not because he did anything wrong, but because he’s doing the job that We The People need him to do, while some semblance of checks and balances still exists.”
The Times no longer sends me an email telling me when my comments get “published,” which really just means screened for inappropriate comment, so I forgot about the post until last night, when a friend said to me at a meeting: did you see that over 5,000 people “recommended” your comment and it got picked by the “NYTimes picks”? So it was: http://nyti.ms/2DWPLbV (link to the article and the published comments).
With some trepidation, I peeked at the 33 comments that others had filed in response to mine. With trollers out there constantly on the warpath, there are always a few who will call you Satanic no matter what you write. I was pleased to see only a couple of negative ones. One particularly gratifying one was:
“I got a bit choked up reading your comment to my wife, Mr. Thomas, and I can see by the high number of recommends that there may be many others who are in heartfelt agreement with you. This truly is our country–not some business venture belonging to Donald Trump as he seems to think it is.
I, and many others, are concerned that this government of the people, by the people, for the people, shall perish from the earth if we don’t keep this wanna-be dictator and his enablers in check.”
How nice that this reader from Illinois, the land of Lincoln, quoted those memorable lines from the Gettysburg Address as he ended. What Lincoln understood in 1863 and is no less true now: the question we face is whether popular government, i.e., self-government by the people, is an absurdity — whether it can be made to work. The question persists; it did not die at the Appomatox courthouse.
What made America unique in the eighteenth century was the notion that we don’t need monarchs; we can govern our own affairs. Not very easily, as it turned out. Our first government under the Articles of Confederation failed. Our second government, described by Benjamin Franklin as “a Republic, if you can keep it,” has had its perilous moments, as slavery and sectionalism tore the country apart within decades. Six hundred thousand Americans (over three million in proportionality to today’s population) killed each other trying to sort things out. We barely survived as a nation, but then grew into a superpower.
Those underlying divisions have remained. Although the Republican party is no longer the party of liberation and the Democratic Party is no longer the party of slaveholding planters (how far they both have evolved from their roots!), our divisions run deep, exacerbated by irresponsible broadcasts posing as news and hate speech on radio and social media. And of course our President sows division with every action and Tweet that he authors.
So the question of whether this experiment in self-government “shall perish from the Earth” is not a frivolous one. This is our democracy’s stress test. And this is why this Republic (“if [we] can keep it”) needs Robert Mueller to ignore the noise and keep doing his job. Because he’s working for us, not the President, and the more he tries to interfere, the more we must speak up in defense of the truth-seeking process.
As Lincoln said, the issue of whether a government by the people “can long endure” is what’s at stake.
Reflections on the Drum Major for Justice in the Age of the American Nero.
Monday, January 15, 2018. It is a sub-zero day here in Boston, the kind of raw winter day that has you going outside only if you have access to fun things like skiing or skating or snowshoeing. Otherwise, a good day for books and newspapers and grading exams from my law students. And for thinking about where we are these days.
It’s MLK day, and in this household we often try to take some time to reflect — on what his words and life meant, on the courage it took to look into the face of hatred not with anger or submission but with love and commitment. The courage to insist, as Lincoln did, that the country live up to its founding ideals, knowing that such insistence would someday cost him his life, as it did for Lincoln.
King’s legacy gets dumbed down just a little bit each year, so that we risk losing not only the power of his message but also its breadth. How many of us know what he said about the Vietnam War? Or about poverty? How many of us know what J.Edgar Hoover’s F.B.I. did to him over decades of surveillance and subterfuge? Have you read Letter from Birmingham Jail? (If not, give it a try; you’ll be surprised to learn how much of it still applies, still resonates.) Can any of us fully understand what it took to adhere to non-violence when the white backlash turned so violent, and so many other black leaders called for different means? I am forever astounded at the man’s courage, and the intellectual coherence of the different strands of his thinking.
It has taken MLK Day to get me back to writing. In this age of Twitter, with President Trump issuing as many as sixteen Tweets per day, many false, many non-sensical, all distracting, it becomes difficult to know what to take on. Engaging in serious discussion seems not to be what this is all about — but in the meantime some serious things are happening while we’re distracted by the latest #shithole assertion. So my apologies for taking a break from the psychological grind of the Trump Presidency. I’m still here doing what I can; I just haven’t been writing in this space. I intend to resume, starting today.
We are close to the one year anniversary of the Trump Presidency. Those who thought he might change for the better after taking office are either disappointed or in denial. He is, to quote David Remnick, “chaotic, corrupt, incurious, infantile, grandiose, … and of a Neronic temperament.” (See https://www.newyorker.com/magazine/2018/01/15/the-increasing-unfitness-of-donald-trump). The settled practices of republican democracy are under constant and daily assault in ways too numerous to count. The only core principle that can be discerned from this Administration is that if former President Obama had anything to do with it, it must be destroyed.
Anyone who still thinks that the election of 2016 was mostly about the Democrats’ inability to connect with white working class voters has his head in the sand. As Ta-Nehisi Coates lays out so brilliantly in his new book “We Were Eight Years in Power, An American Tragedy,” one cannot understand Trump without understanding his explicit tapping into white resentment of perceived marginalization at the hands of “others,” and Trump’s intentional fanning the flames of racism and bigotry. Obama, immigrants, smart women, people of color — these are all what is wrong with America, the narrative goes, all that must be undone or at least put in its place in order to Make America Great Again. Back to the good old days when women wouldn’t speak up about sexual assault, when blacks knew to lay low and keep their mouths shut, when “the only good Indian is a dead Indian.” (Andrew Jackson’s portrait has been moved to the Oval Office, for symbolic emphasis.)
Which brings us back to MLK Day. One of the clear truths that emerges from King’s work is the clarity that America has never been great for everyone. It has often been great for some people, but it has been downright awful for many. He asked us to face the truth that this structural awfulness has not been accidental. Why is this so hard to accept? Can we please forgive those people who shake their heads in frustration when another rich white man says what a great country this is? Great for whom? At our founding, only white men of property were eligible to participate politically, about ten percent of the population. The rhetoric of equality was placed on top of a foundation of inequality, for future generations to make “more perfect.”
The first part of King’s address from the Lincoln Memorial — the part we don’t listen to as much — was the formal demand that we close the gap between the American promise and the American reality. He asked us to recognize that we held certain truths to be self-evident, and that among them was that all men are created equal. So why exactly is it that blacks can’t cash that same check, he asked.
To read Letter from Birmingham Jail today is to be struck by how little has changed, despite the fact that we’ve now had a popular and thoughtful African-American President for eight years. We still suffer from the legacy of what Bryan Stevenson calls our dual national sins: genocide and slavery. To which we can add their progeny: Jim Crow and mass incarceration.
Some big social changes have happened since King was killed in April 1968, fifty years ago. Gay people can now marry, an unthinkable thought twenty years ago. Marijuana is now legal in many states, and simple possession is not considered worthy of law enforcement attention. Once these walls started to crumble, they fell quickly.
But not so with race. Having never done the hard work of truth and reconciliation, the nation remains weighted down by the sea anchor of white indifference, the very same indifference of which King spoke so eloquently from the Birmingham Jail.
He said: “I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not … the Ku Klux Klan … but the white moderate, who is more devoted to “order” than to justice, who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice.”
He was speaking to all of us, no?
Whether it is speaking truth to power and resisting our American Nero, or reaching out across difference, we have no choice to keep fighting for justice. As King so eloquently said to a group of middle schoolers in 1967: “We must keep going. If you can’t fly, run. If you can’t run, walk. If you can’t walk, crawl. But by all means, keep moving.”
If we are to emerge successfully from this great stress test of our republican form of democracy, it will be because each of us, each in her own way, has kept moving, kept reaching for a future more true to our professed ideals.
O.K., Irma, I’ll give you your due. You are one strong woman. You are the strongest hurricane to hit the Atlantic in the history of modern cyclone tracking. People who lived through Hugo and Marilyn and Ivan say you are the biggest and baddest of them all. Poor Jose: he looked tough out there, but coming on your heels anyone would look like a child.
Although there have been hurricanes or typhoons in “Category 5” before, by maintaining 185+ mph for 37 hellish hours in the Caribbean, and maintaining full hurricane status for 12 — count them, 12 — days, you shattered all the records. At the top of Bordeaux Mountain in the Virgin Islands, the winds at one point gusted to 218 miles per hour. There are no words for that. None.
St. John, marked by the yellow star, was lined up for a direct hit.
Look what you’ve done: You’ve killed more than fifty people. You’ve flooded a whole state. And you’ve devastated some of the most beautiful islands in the Caribbean, including one where we own — used to own — a home.
You’ve left local economies in shambles. You’ve turned green paradises into brown wastelands, with trunks of trees sticking oddly to the sky with no leaves anywhere to be found, and boats of any size tossed like toys onto the land. You’ve ripped the clothes off things, denuding the land, making secluded cabins lose all privacy and quaintness.
Upper left is Morgan’s Mango Restaurant before and after. The rest are scenes from around downtown Cruz Bay.
Perhaps, like a child having a tantrum, you were only doing your job. It’s not your fault that we humans have warmed the earth to levels where storms have no choice but to gain intensity. It’s not your fault that we forget that Mother Nature is still the boss. It’s not your fault that the world’s largest carbon producer and largest economy pulled out of the Paris agreement trying to slow down this deadly warming of the planet. Perhaps you were just trying to tell us something that we’ve refused to accept for quite a long time now.
Irma, you will not be forgotten. It will take years for people to rebuild. Even Lloyds of London will take note of you, as insurers call in reinsurance claims. People will be remembering you decades from now, when some solar panel flung deep in the woods is noticed by a bewildered hiker: How did that get here?
But Irma you’re not the only strong gal out there. Let me tell you about some strong women I know, who I’m really proud of. They’re not the only ones; they just happen to be the ones I’m closest to. And you know what, Irma, they’re just as strong as you are. They might even be strong enough to harness your energy into something positive. Let me introduce you:
Eliza Thomas, 21: senior at Carleton College, geology major, interested in environmental issues just like you, Irma. She’s been going to St. John since she was five. She’s got energy and spunk, and writes:
“I’m doing my best to lean into the growing pains of the last few days. … One of the most constant places in my life was just decimated by Hurricane Irma, our sweet little house, along with so many other people’s homes and belongings gone… My heart is heavy for our neighbors who have called St. John home after so many generations … I can’t help but notice what symbolic timing this is [at the start of my final year of school]. How things so integral to your life, so constant, can change on a dime and never be the same. It’s my hope that this year will be one of strength, regeneration, community, and peace amidst uncertainty.”
Emma Thomas, 26: teacher, facilitator, humanist, history lover. She’s got a few words for all of us about how we got here and where we might go:
“What really made the grief flow was seeing the trees, grey spindly skeletal branches, whole hillsides of them, looking oddly bleak next to the turquoise water. All the leaves gone, totally denuded. It looked like a nuclear bomb had gone off.
So now, grief. And through grief, love. And through love, hope and community and bold action as part of this ailing Earth. Reposting what I wrote the other day, before we knew these details, because it’s still true and because we need to spread the word about these islands.
St. John is one place where our family’s heart has lived for the past 18 years. Winds of 185 miles per hour battered this precious corner of the world for hours when Irma hit. The destruction — of people’s homes and businesses, of trees, of wildlife, presumably of coral reefs — is unprecedented. There is so much loss. All cell towers were blown down in the storm, so there’s not much communication coming out of the island. We still don’t know the extent of the damage to our little treehouse home, created with so much love by my parents, although we have heard that most wooden structures on the island were destroyed or lifted off their foundations. We’re expecting the worst.
But home isn’t confined to a building — mostly, my heart aches for our neighbors, for people whose home this island has been for generations, for whom trauma caused by powerful white supremacist capitalism began during Native genocide and slavery and continues today through climate change. I ache for them in a world that has demanded their resilience over and over again.
Home is home in the details. The names of our neighbors. Those sweet foresty smells and sounds. The sting rays who live in the bay, and the way the water lights up with phosphorescence at night when we’re skinny dipping. The birds that love to perch on the graceful, welcoming arm of the tree by our deck. The delicate magenta flowers that spread themselves wide in the sun on top of the old sugar mill ruins, and the magic of hanging suspended above waving fan coral at Haulover Bay while fish and eels do their underwater dance below our feet.
Undoubtedly, those pink flowers regrow, leaves will bud again, and people will rebuild their homes if they choose and if they are able. I know change is the only constant, and I’m learning to get comfortable with it. But there is a profound grief that arises when a place you know and love so intimately — a place woven into the fabric of who you are — is battered and changed so fundamentally by a violence come home to roost in the most vulnerable places. Forcibly extracting oil from the Earth and burning it is a deep, arrogant violence, and that violence cycles and spirals out as the planet warms and weather patterns intensify, often targeting people and places who are not those primarily responsible for the violence in the first place.
When the flooding and destruction is happening in a place I don’t know, somewhere whose particularities don’t feel like a map of my own body, it’s hard for me to really connect to my grief. And when I can’t connect to grief, I can’t connect to love, the fierce kind of love that makes me want to fight like hell. So that’s the crack where the light gets in, I think — that as climate change impacts more and more of our homes, we will be able to fully access our grief, anger, and fear, and by moving through those responses, know them to be an expression of our love, our passion for justice and wholeness, our connectedness to each other, and our oneness with this Earth. As Earth lives, we live. As Earth dies, we die. May we grieve and love our homes in the details and act boldly together from that place of intimacy.
Polly, 58, doctor of science, environmental expert, creator of communities and loving spaces. Having seen her work of two years tossed aside in a day, she still holds the big picture and the possibilities, even in her grief. In a letter to the NYTimes she writes:
“… As Irma barreled towards Florida, no network returned to the devastation on St. Thomas and St. John. We need to keep covering Irma in the Virgin Islands out of respect: because their tragedies are not less important than ours. We need to keep talking about Irma there because they need our financial support and our tourist dollars, now and in the months to come. And we need to keep asking for their stories because they have experience that we do not. We need to understand what it sounds like to have your roof lifted off by 185 mph sustained winds; what it feels like to be unable to find your child; or to see your workplace and economy destroyed, because this is our future if we do not seize this moment. We need to get proximate with the details of this storm so that we can know in our bodies the urgency of driving innovation away from fossil fuels as we are fully capable of doing, and catalyzing a change in US policy. Let us return again and again to St. Thomas and St. John, to their courageous and resilient people, to their spectacular beaches, and to the extraordinary devastation they are in the midst of now. Let us heed Irma’s call.”
Am I lucky or what?
Rebuilding won’t be easy. Even now as I write this, one week after the storm, we have had no communications from our property manager or builder, and therefore no one has been to our house. We know of course that they’ve got their own struggles first and foremost before contacting us, even if they could. (One week after the event, there is no electricity, no cell phones or landlines, no internet.) Whatever remains of that adorable structure now holds standing water and soaking broken debris. What might have been saved a week ago may not be savable by the time we are able to get there.
All that care and love that Polly poured into the details, making a space livable and fun and beautiful without being fancy — her signature — will now have to be shoveled out of the mud and debris first. Where is that cute little painting from the artist from St. Croix? Where did our roof land? Do we just leave it there if we ever find it? What must it have been like to have a metal roof with ten solar panels take to the sky? Is the refrigerator still there, or did that fly away with the rest of it? Our bed? Is it there, still perfectly made but smothered by trees, or somewhere up the hill in what used to be woods? The mind wanders, with a grainy aerial photo the only evidence, leaving the rest to one’s imagination.
We will rebuild, but we have no clue what the process will be or even if what we build will be the same as what was there before. We can’t leave St. John, though. It has gotten into our bones, and to abandon the place now would be the worst of all possible outcomes. No, we’ll go down and figure something out. We’ll get some friends to help us (come join us and make it a party); we’ll help out our neighbors, and we’ll encourage our friends to keep coming down because St. John needs us. St. Thomas needs us. Our friends who lost their homes need the work to rebuild their own lives. THEY NEED US TO KEEP COMING.
Irma, you landed a really good punch. No disrespect. But I need you to know that there is an army of love and commitment that you’ve just unleashed. You’re not the only one with muscle, big girl. Thanks for sharing your thoughts on how dumb it is to heat the water the way we’re going. Your havoc probably won’t get through to the people it needs to, but hey you did your part.
Meanwhile, we’ll get to work. And we will find strength in each other, and in our beliefs of what is possible with energy and vision and perseverance.
Lucky me: I don’t have to go far for buddies in the journey. I’ve got three amazing Amazons by my side.
Appendix:
Woody Guthrie wrote a humorous but poignant tribute to the “Oakies” of the Dust Bowl in a song called My Oklahoma Home. I thought of this song as I contemplated our home being blown around in the air.
Bruce Springsteen recently brought the song back to life with the Seeger Sessions Band, in honor of the late great Pete Seeger. Here’s a clip:
Here’s Pete Seeger’s more gentle, Guthrie-like version:
Trying to find some solace in humor, I changed a few of the lyrics to suit our St. John circumstances:
When they closed up Maho Bay We just couldn’t stay away We wanted a place to romp and play And so we made the race And we staked ourselves a place And settled down ’round Hawksnest Bay It blowed away It blowed away
My St. John home it blown away Well it looked so green and fair When I built my shanty there Now my St. John home is blown away
Well I planted lemons and limes Invested some nickels and some dimes Aimed to have fruit and fish to feed my face Got Carlson’s to take a chance Got Alfredo’s to do the plants Also got a fancy mortgage on this place
Well it blowed away It blowed away All the things we’ve done have blown away Well you can’t grow any thing When all you got is drivin rain Everything except my mortgage blown away
Well it looked so green and fair When I built my shanty there I figured I was all set for life I put on my Sunday best, with my fancy scalloped vest And I went to town to pick me out a wife She blowed away She blowed away
My St. John woman blowed away Mister as I bent to kiss her She was picked up by a twister My St. John woman blown away
Well then I was left alone just listenin’ to the moan Of wind around the corners of my shack So I took off down the road yeah When that nasty west wind blowed I traveled with the wind upon my back I blowed away I blowed away
Chasin’ that rain cloud up ahead Once it looked so green and fair Now it’s all up in the air My St. John home is all over head.
Well now I’m always close to home it blown away But my home Sir is always near It’s up in the atmosphere My St. John home is blown away
Well I’m roam’n St. Johnian But I’m always close to home I’ll never get homesick until I die ‘Cause no matter where I’m found My home is all around My St. John home is in the sky It blowed away It blowed away
My place down on Hawksnest Bay Now is all around the world Where ever rain or dust is swirled There is some from my St. John hideaway
Oh and it’s blown away It’s blown away
Oh my St. John home is blown away Yeah, it’s up there in the sky In that rain cloud over n’ by My St. John home is in the sky
The Court’s tinkering with the injunctions may presage a reluctance to speak clearly and with one voice on a matter of urgent national importance.
There are a few surprises in today’s ruling (http://bit.ly/2u8xe3V), which overturned parts of the lower courts’ injunctions against President Trump’s Travel Bans. These are, in my view: 1) the decision to modify the injunctions now, rather than simply waiting until the case is heard in the fall, 2) the decision to impose a litigation-friendly middle ground in the meantime, despite the fact that the case may soon be moot, and 3) at least three justices are prepared to back President Trump when the cases are heard in the fall, showing a new (and entirely predictable) core of the conservative right on the court.
But first some context. Today’s “per curiam” decision (which means opinion of the court as a whole but not authored by any particular justice) was the result of two separate cases arising from different parts of the country. One was from the West Coast (“the Ninth Circuit” one of the country’s most liberal appellate courts); the other from the Mid-Atlantic of the East Coast (the “Fourth Circuit” one of the country’s most conservative appellate courts). The two federal appellate courts had agreed in striking down the Trump Administration’s Travel Bans, and they did so in particularly strong language. For example, the conservative Fourth Circuit held that the “Muslim ban drips with religious intolerance, animus, and discrimination.” Wow. That is gut-punching language from the guys in robes, who don’t often speak to Presidents that way.
So why, if the two circuits agreed that the Muslim ban was unconstitutional, did the Supreme Court agree to hear the case at all? After all, where there is no “split between the circuits” [lower appellate courts], the Supreme Court often declines to take a case. The answer: because they can’t help themselves. The Court can take any case it wants so long as it has jurisdiction, and in cases involving major public policy matters, it often decides to grant review even where the lower courts have agreed. So no one should be surprised that they chose to take a look.
What should be surprising, though, is what they chose to do before even hearing the case. In the lower court opinions, the courts had granted “injunctions” against enforcement of the Muslim Ban or Travel Ban. That is, they found that the people or states challenging the bans had shown both a high probability of success in their claims and that irreparable injury would result if the ban went into effect. So they said the Executive Branch is “enjoined” (stopped) from enforcing the ban. The Supreme Court could have simply left those injunctions in place, pending its own full review of the case, which is now set for the fall.
Instead, the Court chose to modify the injunctions, allowing part of the Ban to be enforced and part of it not to be enforced. Specifically, the Court said that anyone from the affected countries with a good faith relationship to the United States may enter, but all others may be excluded. Expect a lot of happy clucking from the President’s Twitter account, as this will be spun as a more-than-partial victory for the Trump Administration.
Between now and the fall, immigration authorities will now have to determine, on a case-by-case basis, who has a “good faith relationship” to this country. Expect, as three dissenting justices predicted, some messy litigation in the meantime. Why invite more chaos this summer, when things on this front had finally started to quiet down? It’s a puzzling question, a signal that the Court wants to find a way to recognize Executive Branch authority over immigration matters — while implicitly recognizing that there are limits to that authority based on Constitutional principles.
Fine, but why not just wait to articulate that balance when you rule in the fall? It seems like an unusual step to take, particularly when … the case may be moot by then anyway. Remember that the Travel Ban was originally proposed as a freeze on entry for a 90 day period during which the Executive Branch could “study” the issue and propose more specific rules. O.K., so we’ve now had five months, with a few more to go before the case is fully reviewed in the fall. So by the time the Court gets the case fully briefed, the Executive will have had about eight months to “study” the issue and replace the Travel Ban with something more coherent. Sure enough, the Court in its order suggested that the first issue it wants briefed is whether the case will be moot by the time the justices hear argument.
Maybe the justices are signaling that they think the case will be moot, and if so, they’d like to do some rough line-drawing in the meantime. Those of you with your antennae up about widespread hypocrisy over “judges who legislate” may want to remember this case — the order was either constitutional or not; there was no need to tweak it a bit here or there.
Finally, three justices wrote separately in a signed separate opinion agreeing with part of the decision but disagreeing in part. The three were Thomas, Alito, and Gorsuch, who wrote to say they would have overturned the injunctions completely and are prepared to find the Travel Ban lawful. That’s right, folks, a core hard-right triumvirate is saying that despite a sloppily-constructed Travel Ban “dripp[ing] with religious intolerance, animus, and discrimination,” these three justices are prepared to say “Fine With Us.” So much for the hope that Justice Gorsuch would be a kinder, gentler version of the man he replaced.
There was once a time when the Supreme Court was able to speak with greater clarity and unanimity — as if to say we are above politics. Those days seem sadly behind us for the indefinite future. (Just ask Merrick Garland.) With the Court more politicized than at any time in our lifetimes, we can expect them to be unanimous on precious little. So there will be, it appears, no ringing denunciation of the Trump Administration’s Travel Ban coming from the Supreme Court, as there was from both ends of the spectrum of the lower appellate courts. No, the Court is just too ideological for that it seems. What we will get, one can fairly predict, is procedural messiness over legal technicalities like mootness, and substantial disagreement if the substance is addressed at all.
If so, the Court’s current tinkering may presage a lost opportunity to do what the lower courts did so well: speak the truth about unambiguous racism and intolerance.
In the final scene of the movie Casablanca, Humphrey Bogart says to Ingrid Bergman “We’ll always have Paris” as a memory that can never be taken away even as he insists that they part. The phrase has become iconic. And today, the day after the United States pulled out of the Paris Agreement on Climate Change, the phrase is ironic as well as iconic. We, the world community, will always have Paris, the stated ideal, even if one of the key parties to it has turned its back.
U.S. involvement and commitment is key to humanity’s attempt to overcome the situation it has created for itself. The U.S. “brexit” from the Paris accord is an unmitigated and unnecessary disaster. One can only hope that the other countries of the world, buoyed by resistance by U.S. states and municipalities, hang in there.
There are signs of hope. Apparently anticipating this dark moment, billionaire Michael Bloomberg seeks to to organize the coalition of companies, states, and municpalities into what is being called the United States Climate Alliance. Perhaps this alliance can show the rest of the world that large parts of the American population (the majority in fact) support the Paris accord, and powerful government actors and private sector entities will stay committed despite the Administration’s spiteful and irrational decision. See http://read.bi/2s1ZCqX (Business Insider article describing the Alliance). “Americans will honor and fulfill the Paris Agreement by leading from the bottom up — and there isn’t anything Washington can do to stop us,” Bloomberg said in a press release. Hope!
While the President may have relinquished the opportunity for the United States government to lead the effort to push the Paris Agreement forward, ceding that role now to Germany, France, and China, perhaps there is hope that the United States Climate Alliance can act as a kind of shadow government — a voice like that of the French Resistance during WWII — that will show the world that there will someday be a different American government that will return us to responsible involvement in global affairs. Leading from the bottom up, we the people can keep Paris alive.
As for the President himself, his motivations appear far more spiteful than coherent. Despite advice from many of his own advisors and family, and the pleas of hundreds of American corporations, he chose to unwind a carefully crafted diplomatic structure aimed at addressing one of the world’s most pressing problems. It is, again, as if he must undo anything that has his predecessor’s fingerprints on it, even if it means killing jobs in the new economy.
In a letter to the New York Times, responding to David Brooks’ article “Trump Poisons America,” I said the following [excerpted], which goes to the President’s motivation:
“In response to David Brooks’ excellent article, I’d like to point out that his descriptions of human character are a bit one-sided. There is a duality to human nature that explains much of human evolution …. Yes, we are capable of great compassion, vision, and collaboration, but we are also hard-wired for aggression, tribalism, and even cruelty when acting on behalf of our tribe.
It was this duality in human nature that caused a far wiser President in 1861 to ask his countrymen and women to summon “the better angels of our nature” to avoid civil war. There is always, as Lincoln recognized, a choice in human affairs — whether to act according to higher principles or baser instincts. So much rides on these choices, including whether our experiment in self-government can “long endure.”
Brooks is correct that there are aspects of the human character that are noble. The Paris Agreement, while perfect for no country, was the product of decades of collaborative work among all the countries of the world, in recognition of our shared human problem and our shared human responsibility for causing it. It that sense, the Paris Agreement is properly understood as an extraordinary human achievement in the context of great complexity. We as a species can overcome great challenges, despite tribal (nationalist) urges.
What is unspeakably sad in what happened yesterday is that the President summoned not “the better angels of our nature” but rather the darker, meaner, more tribal angels of our nature. He summoned (again) the human instinct to fear the Other, to be wary of other peoples and nations, to be wary even of each other.
The dark, angry, nationalist vision of Trumpism must be isolated, exposed, and ultimately rejected if we are to find a way to live in peace in the world.”
So yes, we’ll always have Paris. With persistance, we can keep it alive as more than a memory.
Even We Here 