Political update for July, 2013

A presidential paradox

As I start this post, the New York Times is reporting on President Obama's visit to South Africa where he has visited Robbens Island, a prison where South African President Mandela was kept for the majority of his over a quarter century in prison. I'm sure it is a moving experience. A friend of mine went there with his family recently and they found it so, being especially pleased that it was staffed by former inmates.

Nelson Mandela's story, is, of course, one of the great one's of this past century. President Obama notes in the prison visitor's book that he is “humbled to stand where men of such courage faced down injustice and refused to yield” and that the world "is grateful for the heroes of Robben Island who remind us that no shackles or cells can match the strength of the human spirit.” Well said.

But, it is perhaps ironic that while he celebrates one of the most renowned of political prisoners in the 20th century, his administration is relentlessly pursuing a whistleblower or spy named Edward Snowden, who, depending on your take, has stolen away with NSA secrets. Many support him, feeling that he has revealed something of great importance for us in order to preserve liberty and privacy, and should be left alone. He isn't the first, of course. WikiLeaks founder Julian Assange is in an Ecuadorian Embassy in London, Private Manning is on trial and long before either of them, Daniel Ellsberg, a RAND Corporation employee, was able to smuggle the Pentagon Papers to the press, first published by the New York Times in 1971. Mostly thanks to the buffoonery of the Nixon administration in prosecutorial malfeasance, Ellsberg's prosecution was dismissed and he is a both celebrated and vilified, but more of the former and less of the latter. 

In pursuing all of these men, the government naturally invokes national security interests. It has to be remembered that whatever national security threats Assange, Manning or Ellsberg may have represented, little could be presented to support any of it other than vague allegations. But, Mandela was actually a national security threat to South Africa, and deliberately so. His cause may have been just - today it is difficult to find anyone who will speak poorly of him, publicly anyway, but his group worked in collaboration with communists to bomb government agencies and cause maximum distress. We would call him a terrorist were we the subject of their attacks - even one such attack. It is hardly surprising that he was put away for life by a government dedicated to keep the status quo of apartheid.

I have not made up my mind about Mr. Snowden. I merely raise this comparison to ask how is it that a president can so easily navigate the paradox of writing lyrically about someone who resorted to violence to overthrow a legitimate government even for a just cause, and at the same time try to prosecute someone who has not resorted to any violence, but merely shed light on a secret plan to keep tabs on Americans, even if for national security interests. If you need help with this, you probably have not read a lot of politics. Do not expect this to give President Obama any pause to consider. Where national security issues are raised, it is rare that a President could see even potential hypocrisy, or if he did, that he would not compartmentalize and err on the side of security anyway. They are going to protect government secrets (even if they have themselves ordered leaks) because the question will always arise - where does it end if we let this one go?

And, of course, he is hardly alone. I have already read Pat Buchanan's defense of Mr. Snowden and criticism of Obama for pursuing him.  Yet, Buchanan has always been one of the staunchest voices calling the ultimate whistleblower known as "deep throat," the former FBI acting chief, Mark Felt, a traitor, though the large majority of Americans consider him a hero. I have no doubt that he can clearly see how both are possible through some fact or another, though many others would see only that Felt was a substantial factor in the fall of Buchanan's political benefactor and boss, Richard Nixon.

Perhaps "politics" can best be illustrated by Abraham Lincoln's famous words that called an argument against him "but a specious and fantastic arrangement of words, by which a man can prove a horse chestnut to be a chestnut horse.”

Supreme Court paradox

Three cases have come down from the Supreme Court in recent days. One involves the Voting Rights Act of 1965 (VRA) called Shelby County v. Holder and the other two involve gay or same sex marriage - U.S. v. Windsor and Hollingsworth v. Perry. I have written extensively already on Windsor and Hollingsworth (3/31/13), so I will not spend much time on their details or analysis.

As with almost all controversial Supreme Court cases, they will be praised by those who are pleased and assailed by those disappointed in the results. Both groups will often misrepresent them. I find that this is very much the case with Shelby County. This week I read an article by Linda Greenhouse, the former New York Times writer who covered the Supreme Court, who is now semi-retired, but spends a lot of time writing about these cases for The Times anyway. I found her piece - as I find so many - entirely political and biased. I made the following comment:

"In essence, what I get from this (and other articles by Ms. Greenhouse), is that judges or their opinions are good/bad based on whether they favor liberal or conservative causes. In her first paragraph, Roberts is a 'conservative chief justice,' the 'right wing media turned on . . . venomously' because of his Obamacare decision. To the contrary, Justice Ginsburg isn't labeled a liberal, but one of her dissents gets termed 'devastating.' There is no mention of a 'left wing' media or their venom. Later she points that at Roberts' confirmation hearing he said he would have an open mind on the VRA. This plainly implies that if he did not uphold the VRA, he did not have an open mind. She must know, but does not point out, that his opinion acknowledged that racism still existed, that the VRA was the reason unfair state voting practices were curtailed in targeted states and even that congress could yet fashion a similar law based on new evidence. How is that opinion even showing antipathy to the legislature as she also suggests?

It doesn't have to be political. I happen to agree with Shelby, but also with Hollingsworth and Windsor. Does that mean I used my heart on the first and my head on the latter two? I just wish that The Times would rise above what Fox and MSNBC do and have opinion pieces with some semblance of intellectual honesty rather than political tracts 'hiding in plain sight.'"

I put hiding in plain sight in quotes because that was a phrase she used in her article. Another commenter replied to me, pointing out that everyone knows that congress isn't going to do that - make a new coverage standard. You can reply to a reply on some sites, but not on at least some of The Times' articles. But, if I could have replied, I would have written back something like - "But that is how representative government works. Neither you nor I nor Obama nor Boehner, or anyone else gets to choose what the law will be, but it is made in accordance with the process set out in the Constitution to protect all of us from tyranny. What do you want the courts to do -- make constitutional determinations based on what congress might or might not do (or what you personally want them to do)? How could they ever possibly know when even congress doesn't know?  How could they do so and still be an independent judiciary?"

The paradox I put in the title to this section involves a juxtaposition of the VRA case with the gay marriage cases. As is often the case with me, it involves the almost involuntarily reflexive hypocrisy of the right and left. How is it that liberals think it is okay for the federal government to tell states that previously showed bigotry in their voting laws what voting laws they can now change some 40-50 years later, even though registration and voting patterns between blacks and whites are now virtually the same, but do not think it's all right for the federal government to tell states who can marry or not? Reverse question for conservatives? How come they think it is okay for the federal government to tell states who can marry or not and not okay for the federal government to tell states that previously showed bigotry in their voting laws what voting laws they can change? I actually have an answer. It is because both ideologies want whatever control over their fellow citizens they can get consistent with their beliefs, and their positions on federalism are cover for getting what they want.   

 Zimmerman and Trial by Age and Color and Politics

I include this commentary on the case in my political round up because the prosecution and coverage and attention has been political.

I have spent a little time watching the Zimmerman case on television, following the all day trial coverage with just an hour or so of summary and debate by commentators on CNN's Headline News station a couple of nights so far and this morning. The coverage, in my view, is close to clownish - often comprised of panels of so-called experts, some so biased that debates frequently get loud enough and so full of interruptions that last night one of the hosts threatened to turn off microphones if everyone didn't shut up.  I include the panelists who favor Zimmerman, though so far I tend to agree with their conclusions. Of course, it's not every commentator either, just some. But it seems like the squeaky wheels, as usual, get the grease.

                             
Not that I necessarily believe the panelists are sincere anyway. Not too long ago I overheard an attorney on her cell phone in court tell a friend or co-worker that she was scheduled to be on FoxNews that night to join a panel on abortion, but she hadn't been told what position she would take. What? As cynical as I am, I was still stunned by the phoniness of what appears to be the erasure of one the last line between cable news and professional wrestling.

I don't know what happened the night when Zimmerman shot Martin. None of us were there and, of course, one of the parties is silenced forever. But, the evidence that the prosecution has adduced so far seems to me to be so full of holes that it is hard to believe it is even favorable to their own side. One of the detectives they called said he believed Zimmerman had been truthful in a description of what happened. The young woman who was on the phone with the deceased teenager testified to what is so far the only indication of racism - and that by the deceased - who called Zimmerman a "creepy-assed cracker," and then denied that she thought this was a racist statement. She also confirmed Zimmerman's story that Martin confronted Zimmerman rather than vise versa. She has already gone on social media to criticize and curse at those who doubt her - making this trial more like a reality show than can possibly be good for the system. Another witness called by the prosecution says that he is Zimmerman's best friend and it seems testified for his friend even though subpoenaed and called by the prosecution. These seem to me to be natural conclusions watching what I could of the clips. At the same time it appears to me that most of the panelists and the host on the HLN shows I've watched do not seem to see it the way I did. From my viewpoint, some of them are basing their analysis on the supposed color of the participants or their disparate ages.

The good news is, I have seen commentators on other stations, even CNN, whose analyses seem much more serious and less emotional. But, these analyses tend to favor the defendants and it can be argued that this is why they seem more rational to me. Not that it matters what any of us think - only the jurors really matter.

Anyone who is old enough to remember the O.J. Simpson murder trial also remembers the color bias that attached to those viewing that case.  The country seemed divided up into color camps, more whites in general believing that Simpson was guilty (Gallup, 1995, 70%) and far fewer blacks in general believed in it (same poll, 12%). I certainly did think he was guilty, but not necessarily on the merits of the evidence before the jury. The prosecution team was terrible, in my opinion, and the police not any better. They probably did not meet the standard of proof necessary to convict.  Having watched most of the trial, I also thought the defendant's attorneys' (the so-called "dream team") efforts very poor (excepting the Barry Scheck and Peter Neufeld, the defense attorneys who focused on dna). I personally thought there was a good chance O.J. would be acquitted, though I wasn't sure, given how much emotion there was about it. I will throw a good for you to Don who comments here sometimes; he was certain O.J. would be acquitted and was right. In my anecdotal experience discussing the case with blacks and whites, they were convinced that their own conclusions were based on the facts, while the other side's opinion was based on color.  It is not in the nature of bias that any of us can recognize our own. At least, it is rare.

Of course, this is my blog and I can do any stupid thing I like. So, I will try and identify my own biases, which I recognized while watching the Zimmerman case. They just aren't racial.  Before you cringe, I recognize how foolish this is. Were I ever to have the misfortune to be accused of murder or other heinous crime, no doubt they will be waved about like a bloody flag (not leased that I had already supposedly conceived of being accused of murder).  I'm going to count on never getting charged and do it anyway. My reason is this - I tend to agree with Justice Sotomayor's famous "Wise Latina" speech. Everyone is biased in some way. It is part of being human. We are fairer when we recognize that we have these biases and try to account for and combat them in coming to a decision.

So, let me start with my first bias. I am, at least to some small degree, more pro-defendant than pro-prosecution. I think it is a natural reaction of mine to want to defend people. Don't get me wrong, I was sickened when O.J. was found not guilty and want all murderers, rapists, monsters, burglars, muggers, robbers, con men, and so on to get convicted. But, I deplore some of what passes for acceptable tactics by some prosecutors. Among these tactics are overcharging (making charges against the defendant more serious than what seems possible he/she will found guilty of, hoping the jury will compromise with the desired lower charge - which I think they have done in Zimmerman), threatening witnesses with prosecution and perjury charges if they do not testify as the prosecutor wishes (this was used extensively during the Judge Starr's pursuit of President Clinton, but was considered a standard technique) and trying to relate completely circumstantial and irrelevant facts to show the "bad" character or supposed tendencies of the defendant. In the Zimmerman case, the prosecution appears to be setting up the inference that because Zimmerman had some interest in law enforcement . . . perhaps he is a murderer? That because his gun had a "normal" pull on the trigger . . . perhaps he is guilty? I don't just find this sort of evidence convincing at all. I find it reprehensible to try. But judges tend to let this kind of stuff in, at least in big cases.

By the way, this bias of mine does not extend to your run of the mill assistant prosecutors, who I usually find to be quite decent people, not looking to hurt anyone unfairly. High publicity cases tend to bring the worst out in people. And don't think I trust defense attorneys either, but they are charged with doing everything they can to defend their clients, where the district attorney has ethical duties to the community which require him to be fairer.

The bias I see among the population (from the lofty heights of this blog I can actually see all) with respect to color seems to me a little different than in the past. I do not see only people dividing on color lines consistent with their own skin tones, but some, I think even more people, dividing on color lines depending on their politics. The defendant is Hispanic, Peruvian to be specific, and according to some reports is at least partially black through one grandparent on his mother's side. But it seems to me that, the victim being black and the alleged assailant being portrayed as white, many white people are rallying to the prosecution's side against the perceived white man. My impression is that a lot of this is more political than racial. Those more conservative seem less likely to sympathize with the victim and more likely with Zimmerman, those more liberal seem the reverse. The somewhat disparate skin color may be the reason the media is interested but I don't think it is why everyone is taking sides here. It just seems like it.

Certainly there may be a fair conclusion at some point that Zimmerman used race in profiling Martin. All I have heard so far is that when asked to report Martin's color he responded. Whether profiling is appropriate or not is a discussion for another day. I have heard arguments on both sides and have not completely made up my mind on it yet. I think it may depend on nuances.  Let us presume for the moment he did profile. There is no doubt that he also profiled him based on age to some degree (he didn't realize just how young he was, but obviously could tell he was young).  And I think people will conclude as I have, that, in a perfect world, Zimmerman should have followed the advice over his radio not to pursue Martin himself or to get out of his car. He was neighborhood watch, not a police officer and no person was in danger who needed rescuing. But, he got out. That is as far as I am willing to take that opinion. It is not relevant to the case, in my opinion.

What puzzles me is this -- many people, and I include media figures as well as friends and acquaintances of mine, seem ready to conclude that if Zimmerman profiled Martin, he should be found guilty of some crime - perhaps even murder. That baffles and frightens me. I have even heard panelists argue that even if it is concluded that the aggression and violence that occurred was instituted by Martin and that he attacked Zimmerman, had him pinned on the ground, was beating him and went for the gun - the entire incident is still Zimmerman's fault and he should be convicted. I was struck last night by one panelist who related her own story of being a teenage girl who was terrified of a man who kept driving by her. If, she said, he had approached her, she would have feared for her life and tried to kill him however she could. She repeated this several times with great emphasis. Her point was, that even if this is what Martin did, he was justified in trying to kill Zimmerman. Not only does this strike me as absurd, but, worse, when the host asked her if that also applied to Zimmerman - if he feared for his life, right or wrong, wasn't he justified in shooting Martin - she, nor at least one other panelist, seemed to think so.

But, I have personally spoken to people myself who seem to agree with her. I do not know what the women on the jury, and they are almost all women, think.  I am not going to fall into the trap of assuming they think like me.

It is enough to say at this point that I will be very disappointed if the jury seems to make their determination by the skin color or age of the Martin and perhaps the perceived "whiteness" and circumstantial evidence against Zimmerman. The facts -- again, from my viewpoint - seem to favor the defendant.

My second bias is probably age related. Like Zimmerman, I would find a young male, black or not, wearing a hoody, looking closely at houses (taking Z's word for it here) to be reason to be concerned.

 
None of these two biases - preferring prosecutors to play fair and disliking it when they are coercive or overreach, or being a little suspicious of hooded young men (I wear sweatshirt hoods all the time, by the way, but am not suspicious of myself or men my age who do so) would for a second make me want to acquit someone if I thought they were guilty and I could in a second, in appropriate circumstances, find a defense attorney less decent than a prosecutor and a hooded young man more honest than someone looking more like me (I am also, by the way, biased against very well dressed people).  I'd like to think I could easily get past these minor biases, though, no doubt, knowledge of this blog itself would probably bar me from sitting on a criminal case as a juror. That's what happens when you admit bias. What biases I have that I cannot see myself, obviously, I cannot say.

Murder is of course a very emotional thing - d'uh - and because I do not believe we are very capable of putting the desire to punish someone out of our minds in making a decisions on guilt or innocence, I am therefore against the death penalty in most cases (not so much when there is overwhelming proof of guilt). This case is probably a very good example why.