Democratic Outline of Abject Failure
The GOP’s tried and true play book will lead to another win over the gun control lobby, and American children. It always does. Democrats have their own predictable responses. Of course, the predictable responses will lead to inevitable failure.
1. “We should not live in fear of sending our children to school.”
Translation: Let’s show that we are angry too. Maybe this is a good election issue for us!
2. “We need to ban assault rifles, ghost guns, high capacity magazines, and bump stocks. We need universal background checks and waiting periods.”
Translation: We have to ride the public sentiment and use this momentum to get something done. Also, let’s make sure our voters see us responding!
3. “We need common sense gun laws, like universal background checks.”
Translation: Ok… we were too ambitious. We could never get all that done. But maybe something small to show voters that we are trying. In any event, we need to back off a bit to support our purple district colleagues.
4. “We are not beholden to the NRA.”
Translation: We aren’t! We swear!... Ok… some of us are…. Ok, ok… many of us are in purple districts and if we push too hard the gun rights lobby will come after us.
5. “The GOP refuses to work with us. It’s their fault nothing gets done.”
Translation: We failed again. But let’s point the finger. We should not look too closely at our own ineptitudes. We do not want our voters to know that we are afraid of the NRA.
6. “…”
Translation: If we keep our heads down and wait, this will blow over. It ALWAYS does. The American public has an extremely short attention span. They will forget, and we can avoid taking on a difficult issue.
To be an elected Democrat you must be comfortable failing… all the time. To be a liberal, progressive or just a human with empathy you must be prepared to be continually disappointed in those who are supposed to represent you. Be prepared for angry calls to action, nervous hand wringing, ambitious proposals, followed by less-ambitious proposals, and finally silence. In a month we will be back to where we started and nothing will have changed.
GOP Playbook for Mass Shootings
The GOP has a typical and predictable response to mass shootings. Below is the continuum of escalating non-response to the gun violence crisis and the translation from political BS to plain English.
1. “Our thoughts and prayers are with the victims and their families.”
Translation: Let’s pretend to empathize and sympathize with the victims while also emphasizing our religious credentials.
2. “We should focus on coming together as a country and mourning this loss.”
Translation: Let’s not talk about guns.
3. “Democrats are weaponizing this tragedy for political purposes. This horror should not be politicized.”
Translation: We really do not want to talk about guns. Our campaigns are funded by the NRA and guns rights groups. We really need their money. Retaining our position of power is more important than any common sense gun laws, the children of average Americans and any basic notions of morality.
4. “This is a mental health issue. We should focus on red flag laws.”
Translation: We cannot concede this is about guns. Where else can we point? Mental illness is low hanging fruit. But we have to be careful not to overstate our case. Because we will not agree to fund mental health services in schools, we will not support universal health care with mental health services, and we definitely do not support universal background checks. Indeed, we will not agree to any sort of public mental health services.
5. “The Second Amendment is fundamental, we cannot allow isolated incidents to lead to an infringement of those rights.”
Translation: Look at us NRA, we are saying what you want! Now spend your money on reelection campaigns, and we will keep acting as your mouthpieces.
6. “This school shooting was a false flag operation staged by democrats and the gun control lobby. The victims are paid actors. Don’t believe the conspiracy!”
Translation: Americans are angry, and we are desperate. So let’s lie. Our voters will believe anything! After all, they believe Trump won the 2020 election!
7. “…”
Translation: if we keep our heads down, and hold the line, this will blow over. It ALWAYS does. We must rely on the short attention span of the American public!
That is the playbook used every time. It is already being used today, the day after the tragedy. Guess what? It works. Every time. Republicans continue to get their money from the NRA, nothing changes, and I get to feel nauseous sending my child to school.
SCOTUS controls your rights.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That is the Due Process Clause of the Fourteenth Amendment to the United States Constitution. That sentence is where a constitutional right to abortion is derived. A long line of Supreme Court cases has interpreted this language to include fundamental rights. The reasoning is that “due process of law” protects not just procedural rights (think criminal rights), but also fundamental rights. Fundamental rights refers to those rights specifically enumerated in the constitution (free speech, religion etc.) but also those rights which are widely accepted; exist independently of the constitution and are derived from our very nature as human beings.
In Roe v. Wade, the SCOTUS found that the substantive due process clause guarantees and protects a right to privacy. Within that right to privacy is a woman’s right to terminate a pregnancy. Roe recognized that women have autonomy and privacy in their own bodies. But the right to privacy was never limited to the question of reproductive rights. Roe recognized, for the first time that the U.S. Constitution protects a fundamental right to privacy for everyone.
It is a near certainty now that Roe v. Wade will be struck down in the next few months by a conservative majority that is no longer even trying to hide its politics. The day the opinion is released abortion will become immediately illegal in nearly half the country. In that same instant a constitutional right that women and doctors have relied upon for almost 50 years will evaporate. Women will be rendered second class citizens.
That is not the end of story though. The consequences reach beyond the abortion debate. When Roe is overturned the broader right to privacy, first recognized in Roe, is weakened, indeed, the foundation will crumble. In the 50 years since Roe the fundamental right to privacy has been acknowledged, interpreted, and applied as the legal and philosophical basis for the recognition of additional rights that are not already enumerated in the Constitution. Roe’s right to privacy is the trunk of a family tree. Roe’s progeny (those later decision which rely directly upon it for legal authority) grew into branches that extended and stretched in multiple directions. The most well-known branch, of course, deals with abortion rights. Roe’s right to privacy also grew into Lawrence v. Texas. In that case, SCOTUS held that criminalizing homosexual conduct was unconstitutional. SCOTUS in 2003 established, for the first time, that homosexuality could not be criminalized because private sexual conduct between consenting adults is protected by the right to privacy.
Dobbs will take a chainsaw to the abortion branch and in so doing harm the entire tree. SCOTUS cannot overturn Roe without also irreparably damaging the right to privacy. From Roe came the right to privacy and the right to abortion. These two rights are so thoroughly intertwined that elimination of one profoundly harms the other.
Lawrence v. Texas and its progeny will, at best, be left weakened, and, at worst, entirely without a legal/constitutional foundation. For a time, I believed the culture wars, at least with respect to the LGBTQ+ community, were winding down. That was naivety and ignorance on my part. The right’s culture war against the LGBTQ+ community never really ended. In 2022 it has been, once again, pushed to the forefront by opportunistic, power-seeking politicians. Republican legislatures across the country are passing laws that dehumanize and delegitimize (under the law) LGBTQ+. Many of the laws squarely aim at marginalizing transgender youth (yes, Republicans are taking aim at children).
Roe’s right to privacy provided part of the constitutional foundation for Lawrence. Lawrence, in turn, has its own progeny. Specifically, there is a direct line from Lawrence to Obergefell v. Hodges. In Obergefell, SCOTUS recognized same-sex couples had a fundamental right to marry.
To recap – Roe is the foundation of Lawrence. Lawrence (and Roe) is the foundation for Obergefell. Do you see the dominoes? Without Roe the right to privacy has been dealt a mortal wound. Without the right to privacy is there still a constitutionally protected right to private consensual sexual conduct? If homosexuality is not protected from criminalization, can there still be a constitutional right to marry?
In 2022 it is not hard to imagine that cynical power-seeking conservatives would seek to turn back the clock on LGBTQ+ rights. It is not inconceivable that states like Texas could revive long anti-sodomy laws in order to criminalize the LGBQ+.
Maybe, this is alarmist. But four years ago, I would have told you Roe would never really be struck down. Maybe death by a thousand cuts, but never fully overturned. I would have been wrong. The right to privacy will be diminished or destroyed and with it other fundamental rights that people have come to rely on. Anyone who believes that women should control their own bodies, and that LGBTQ+ community should have the same rights as anyone else should be deeply concerned.
*I am not a constitutional scholar. The constitutional issues are complex and multifaceted. This essay, admittedly, only touches on the surface, there is more nuance than I have the time or energy to address. My intent here is to highlight, the broader devastation that could be wrought by overturning Roe.
Elon Musk - Champion of free speech brought to you by Elon Musk.
I don’t know who needs to hear this… but being uber-wealthy does not make you an expert on all things. Actually, I do know who needs to hear this. It is Elon Musk. He needs to hear that. Someone should tell him that the ability to accumulate enormous amounts of wealth does not mean you are a qualified expert on all things. I am curious as to what exactly Elon Musk’s qualifications are to determine what free speech means? Or what free speech means in the United States? Is he a constitutional law scholar? Has he studied the sociological impacts of certain forms of speech? Does he have particular expertise in how the “free speech” of some can move markets and create or destroy wealth? (Actually, he might know a bit about this, the SEC can tell you more). Has anyone ever talked to him about what happens when you shout fire in a crowded theater?
Full disclosure, I am not on Twitter. I have never tweeted. Indeed, I do not have a high opinion of Twitter. Particularly, if it is described as a national town square for speech. 280 characters is insufficient for anything resembling a nuanced discussion to occur. If I am completely honest, I believe Twitter might be a contributing factor in the devolution of American political discourse. Twitter, arguably, was responsible for Donald Trump. Twitter is excellent for slinging insults, the viral spread of lies, and the promotion of inflammatory speech.
On the other hand, I am prepared to concede that as a social media platform it can be a force for good and a bastion of free speech. Twitter was undoubtedly a tremendous facilitator for the Arab Spring (though the promise of that time has not been realized). On Twitter, most of the time, anyone can respond to anything in real time. There can be something truly inspiring about immediate, real-time, debate and discussion.
At the end of the day, Twitter, like all things, is a force for good and bad. It is a tool that can engage the ideals of free speech, while also providing a platform for bullies and trolls to suppress the speech of others. Publicly, Elon Musk wants to own Twitter in order to promote it as a space for unfettered free speech. But there is no single, universally accepted, legal or philosophical definition of free speech. So, when Elon Musk says he wants to promote and protect free speech, he means he wants to promote and protect Elon Musk’s definition of free speech and that should be concerning.
Let’s establish one thing, there is no such thing as wholly unencumbered, unfettered, unrestricted speech. The First Amendments states (in relevant part): “Congress shall make no law… abridging the freedom of speech.” In its plain terms, the First Amendment serves only as a limitation upon the powers and actions of the United States Congress. In other words, the federal government is prohibited from restricting speech. A private company, or an individual cannot violate the First Amendment because it is not the government. In other words, your First Amendment rights cannot be violated by McDonald’s or your asshole neighbor that keeps tearing down your “Hate has No Home Here” sign. Twitter does not violate your First Amendment rights when it takes down a post containing Covid misinformation.
Those words are only simple on their surface. As it happens, the definition of “speech” is amorphous. The Supreme Court has interpreted and reinterpreted the First Amendment. In short, it turns out that the Government can make laws that abridge some forms of free speech, because any other conclusion is impracticable. Should hate speech be protected in the same way as political discourse? Is commercial speech as important as civilized debate? Should we protect incitements to violence? In the abstract, those questions have easy answers. But in practice those questions involve a complex balance of values. The line between hate speech and political opinion would be drawn differently depending on your perspective. Does/should a corporation have its own independent right to free speech? Is “Burn it all down!” an incitement to violence or an expression of the opinion that significant change is required? It depends on your perspective. Is there a right to yell “fire” in a crowded theatre? Those are moral and ethical questions, devoid of easy answers. Our Supreme Court often gets it wrong. Even so, the American version of free speech is far more expansive than that of other western democracies. Our tolerance for hate speech is far greater than anyone else’s.
In recent years, Twitter and Facebook have had to figure out when and how to restrict Covid misinformation. They have had to determine how and when to fact check politicians, celebrities and even news media. Which has led to congressional hearings and testimony and universal agreement that they aren’t doing it right. Though, if you ask the right, you will hear that Twitter and Facebook suppress conservative viewpoints. But if you ask the left, they will tell you that Twitter and Facebook not only tolerate lies but promote them. Free speech to a modern conservative means freedom to speak, promote and spread inflammatory and baseless conspiracies. On the left, it sometimes means that if your views do not sufficiently line up with theirs you should be shouted down and de-platformed.
There is no reason to believe that a Twitter owned/controlled by Elon Musk would be any better at determining how and what speech should be protected in a private platform. Indeed, Elon has shown a penchant for irresponsibility. In the not-so-distant past, Elon was in hot water for tweets suggesting he had funding secured to take Tesla private. Unsurprisingly, Tesla stock soared. But the promised privatization never occurred. Instead, Musk saw his own wealth increase. Otherwise, Musk has a penchant for inflammatory statements.
So, what does free speech mean to Elon Musk? We do not know. We have no idea. I am comfortable predicting that Musk’s number one concern will be increasing his own wealth and promoting his own brands. No one has ever become the wealthiest person in the world because of their unimpeachable values and ethics. No one has ever attained that position because of their capacity for kindness and empathy. There is no doubt that Musk will support “free speech” that benefits him. But how will he draw the line between hate speech and political speech? What will his Twitter do about misinformation, lies and incitements to violence? No one knows. But is there really any reason to believe that an ego-maniacal trillionaire is qualified to strike that balance?
A Solution Without a Problem.
Utah recently passed a law that bars transgender girls from playing girls sports. Based on the Utah legislature’s actions, one might assume that there has been an explosion of transgender girls enrolling in girls sports and stealing trophies from biological girls who lacked the competitive advantage of being born a boy. Surely, there have been cisgender female athletes who have been deprived of opportunities because of bigger stronger transgender girls. Obviously, this must be the case, otherwise why would the legislature enact such a law?
As it happens, there is one transgender girl who will be impacted by this law. One. A group of predominantly white male conservatives gathered together to draft a law, pass it and override the Governor’s veto in response to one transgender girl. This law is a solution to a nonexistent problem.
I find it to be utterly appalling that a law was enacted in response to a single girl’s desire to play sports. I must assume that these lawmakers did not stop to consider the impact this would have on that girl. Can you even imagine what it would feel like to have a law passed to stop you from doing something so incredibly ordinary as playing a sport? The psychological harm to her and her family is heart breaking.
It also sends a devastating message to transgender teens throughout Utah and the United States. The message is “You do not belong. You are not like the others.” The Utah legislature told transgender youth that they have no place in typical circles of American society. It is government sponsored marginalization. It is legislative emotional abuse. Having the courage to be transgender is undoubtedly difficult enough. Suicide rates among transgender teens are extraordinarily high. Homelessness among transgender youths is endemic. This is already one of the most marginalized and vulnerable populations in the United States. The utter absence of empathy demonstrated by lawmakers in Utah is astounding. The law is a cruel solution for a problem that does not exist in Utah.
If it sounds like I am angry, it is because I am. I am a father of three. Since becoming a father I have begun to remember the many ways in which being a child can be difficult and confusing. As a human and a father, I believe the primary objective of any laws affecting children should be to do no harm. This law is clearly and objectively harmful. Most of Utah’s legislators are likely also parents. The fact that a parent would pass a law that directly harms children is incomprehensible to me. The Utah legislature should be focused on protecting and supporting vulnerable children, and not enacting pointless cruelty.
This law is an example of political opportunism. Right-wing conservatives believe they can win elections and appeal to their base by continuing to fight the culture wars. Do the Utah legislators actually and honestly give a damn about girls sports? Of course not. What they care about is winning elections, retaining power and establishing their conservative bona fides. They do not bother to concern themselves with the impact this will have on vulnerable transgender youth, because those youth, their families and allies would never vote for these right-wing conservatives anyway. Political self-interest and power preservation is what is actually in the hearts and minds of legislators in Utah.
I know very little about Republican Gov. Spencer Cox. I imagine we would disagree on a great many issues. However, it takes a rare courage in the age of Trumpism to defy your political party and alienate your base. Gov. Cox vetoed this bill because of empathy. That is to be commended. We need more lawmakers who will embrace empathy as a principle of decision-making.
In 2022 asking for empathetic lawmakers may be a bridge too far. Perhaps, at a minimum, we could have elected officials who have the raw decency to not use vulnerable populations as a political bludgeon. That, also, may be too much to ask in the age of Trumpism. How about politicians who are unwilling to harm vulnerable children? The bar could not be set any lower than that.
Would you rather your children be lied to OR taught the truth?
As a child, I was fascinated (read: obsessed) with the Civil War. I read books, watched documentaries, collected pewter figures and was even something of a reenactor for the briefest of moments. Gettysburg was my favorite movie. I even wrote a poem about history! Yes, of course, I was a tremendous nerd.
On the rare occasion that I found opportunities to discuss (read: lecture) people on the Civil War, I would explain, with no small degree of condescension, that the war was not actually about slavery, it was about States’ rights. I might have argued that the real issue in the war was what power should be held by the Federal Government and what power should be retained by the States. I do not remember if this was something I was taught in school. I do know it was something that I had read in multiple books. The idea is even mentioned a couple of times in Gettysburg (movie).
At this point, you might be wondering why I am spending paragraphs establishing my geek credentials. Well, it’s because I was wrong. I learned an incorrect white-centric version of history and I repeated it. Even if one accepts the idea that the Civil War was about State’s rights, what right was it that they were willing to fight and die over? Slavery. The “right” to own another human being was the principal issue behind the Civil War. Someone, somewhere lied to me. As a child I lacked the capacity to critically examine those claims. I was reliant on my books and teachers to mold my views and sometimes the wrong things were taught.
It is said that history is written by the victors. It is more accurate to say that history is written by the powerful, the oppressor and/or the wealthy. History, like anything else, is recorded, taught and interpreted with an agenda. It is natural, even useful, to interpret history and try to distill the necessary lessons. But when a version of history is taught that excludes uncomfortable truths and inconvenient facts those lessons are lost and we lose the opportunity to understand and grow.
There is a movement afoot to teach our children a more robust version of American history. This version of history considers and accounts for the history of enslaved and marginalized persons. It examines the sociological, economic and cultural consequences of a people being owned. It provides a more nuanced understanding of our hallowed founding fathers. George Washington owned slaves, that is a fact. He was also quintessential in winning the Revolutionary War and as President secured the process of peaceful transitions of power, also facts. Errors are being corrected. You hear less often that Christopher Columbus discovered America. Because, he didn’t. There were civilizations all over the Americas long before a European set foot here. The myth of Thanksgiving is being reconsidered. We must acknowledge and reckon with the destruction European colonists wrought on Native peoples.
Conservatives have labeled this movement as Critical Race Theory (it is not), and used it as a political bludgeon in election campaigns all over the country. Most recently, Sen. Ted Cruz leveled this attack against Judge Jackson during her confirmation hearing. Never mind, that as a judge she has no role in education policy. It was a shameful, silly, theatrical and ridiculously off topic. It was political theater at its worst.
Sen. Cruz did not care what Judge Jackson thought about Critical Race Theory. Instead, he wanted to show off his conservative credentials to a national audience with an eye toward 2024. Sen. Cruz was weaponizing identity politics. It is no coincidence that he aimed this silly attack against a black woman. The unsubtle implication was that because Judge Jackson is black, her judicial decisions will be not only influenced but controlled by her race. Never mind her incredibly distinguished resume and legal acumen.
The reprehensible political theater is only the latest venue for this policy debate. It is worth considering what the fundamental debate is about. Grade school education on history has traditionally been focused on telling a great American Story. The Cliff notes might sound something like this: The brave pilgrims fled an oppressive English King in order to find freedom in a new land. Thereafter, more freedom loving Europeans joined their ranks and began to build a new world. But while this new world flourished it remained subject to the whims of a dictator across the Atlantic ocean. As a result, the greatest political minds came together to shake off foreign control and form a new nation based on equality and freedom.
Of course, that is not the whole story, it is hardly even truthful. Instead, it is a viewpoint. It is a story crafted to support a narrative of American Exceptionalism. A more robust cliff notes version that is not controlled by traditional narrative might be this: Small groups of European colonists began landing on the shores of North America in the early 1600s. Upon arriving on the shores of America they found the land already populated by natives. Over the course of the ensuing century, more European colonists arrived. The first group of slaves were imported in 1619. Through violence, biological warfare and trickery the European colonists pushed the natives from their lands. The colonies prospered through trade in furs and resources unique to the Americas. An agrarian society developed in the South on the backs of slaves imported from Africa. Southern plantations flourished because of the brutality of slavery. All the while, England continued to tax its increasingly wealthy colonies. The colonists revolted and formed a new sovereign nation. The colonial elites, wealthy and war heroes came together to draft a new constitution. This constitution guaranteed political rights to white land-owning men. For the purpose of distributing congressional representatives’ slaves were counted as 3/5ths of a person. Women were entirely excluded from the political process and denied the right to vote. Even white men who did not own land were denied the right to vote, thus disenfranchising the poor.
The first version is political propaganda that serves to instill pride in the Country we live in. It is also a viewpoint designed to ignore the mistakes and violence of our past. The first version is a lie by omission. The second version tells the exact same story but without excluding the marginalized persons who are also part of our history. The second version accepts and accounts for the errors of the past. There is little doubt that the Revolutionary War, the drafting of the Constitution and the First Ten Amendments were a turning point in the history of the world. As Americans we can look to those events and take pride. However, as rational human beings we should also be able to look at the mistakes and understand the nuances of our own history. We lionize the colonists and founding fathers, but they were only human. They were limited by their own biases, prejudices, and self-interests. We should be able to take pride in our history while simultaneously accepting and learning from the terrible atrocities of our past. It does not need to be one or the other. It can and should be both. We can tell the story of what democracy looked like in its infancy (hint: it looked very little like democracy) while also telling the stories of those persons who have been omitted or minimized in our retellings.
There are countless examples of this phenomenon in the American classroom. Consider how we teach and understand WWII. For a great many reasons, the Allies fought a righteous war. The holocaust was, arguably, the most terrible atrocity of modern history. What about the Hiroshima and Nagasaki? Traditional American history says that the bombs, while horrible, saved lives by bringing a swift end to the war. That is the perspective of the victor though. That is an “ends justify the means” perspective. Does killing civilians, particularly children, justify a swift end to the war. And what lives were saved? It was not the 130,000-215,000 Japanese who perished in the bombings, it was American soldiers. Yes, the war ended, but we also ushered in the nuclear age and an arms race that continued for decades. Traditional American education teaches that the bombs were justified, but that is viewpoint, not fact. Let us not also forget the Japanese internment camps. Our hands were cleaner but certainly not clean.
Every American history course will spend some time on the Civil Rights Movement. Martin Luther King Jr. had a dream of peace and equality. Nonviolent protests from the Black community and their white allies lead to momentous changes. But the violence perpetrated upon black people before and during the movement is considered only in passing. Is the shameful history of extrajudicial killings/murder/lynching fully taught? Are events like the Tulsa, Oklahoma massacre even taught? The Civil Rights Movement is taught with an emphasis on “I have a Dream”, the Million Man March and bus boycotts because those are uplifting moments. The horrible oppression and violence is minimized.
Ultimately, the question is: should we lie to our children? Should we tell our children part of the truth because it is easy and convenient? Should we lie and say that colonists arrived to a new world? Or should we remember that there were already humans here and they were violently removed from their lands. Should we lie and say that America was founded on freedom and equality? Or should we explain that while the founding of this country was a great step toward representative democracy, women, minorities and the poor were intentionally excluded. Should we tell the truth and explain that slavery and its ongoing legacy is quintessential to understanding the United States, its history and modern institutions?
Personally, I want my children to know the whole story. I want my children to know the triumphs as well as the defeats. I believe they should be taught our prideful moments, but also those for which we should feel shame. It should not be an “either/or” but instead always a “both/also”. With context and nuance, we can better understand ourselves, our history and progress into the future with eyes wide open.
I do believe in American Exceptionalism, but not the white-centric, lie-by-omission American Exceptionalism pursued by Ted Cruz and the radical right. Instead, my American Exceptionalism is rooted in the astounding diversity of this country. I have been fortunate enough to visit cities in Asia and Europe. When traveling abroad it is always our habit to use public transit. What I have noticed is that on trains in Istanbul, Athens and Hong Kong the majority of riders are native Turks, Greeks or Chinese speaking the prevailing language. Compare that to my experiences on public transit in Chicago, New York and DC. Contained in any and every train car is a rainbow of skin colors, and a chorus of languages. There is no other place in the world where such diversity exists. The entirety of the world’s races, ethnicities, cultures, languages, religions, sexual identities and gender identities can be found living openly and freely here. To be sure, much work is needed for justice and inclusivity. But nowhere else in the world can such an exceptional mix of humanity be found.
In Defense of the Defense.
Americans and particularly politicians have a shameful habit of demeaning and devaluing the work of criminal defense attorneys. Our criminal justice system is an adversarial process. Prosecutors seek to convict the accused (though technically they are supposed to pursue “justice”), defense attorneys protect the rights of the accused. Absent the arduous work of defense attorneys, the justice system would run roughshod over everyone accused of a crime. The ability of the system to dole out some degree of justice is dependent, almost entirely, on the work of criminal defense attorneys and public defenders.
The right to representation of counsel is fundamental. Indeed, representation by counsel in a criminal proceeding is a constitutional right (Gideon v. Wainwright). We cannot pick and choose who is entitled to the right or under what circumstances the right should be suspended. Do you trust prosecutors, government officials and judges to always, independently protect your rights? They are human, with human biases, blind spots, self-interest, and personal agendas. That is why rapists, murderers, pedophiles and terrorists have the same right to Counsel as the wrongly accused. The guilty must be defended so that the innocent are too. It applies always or not at all. It is the job of criminal defense attorneys to zealously advocate for the rights of their client. Moreover, serving as a public defender is a particularly thankless job, but, arguably, the most essential in the entire justice system. Public defenders are the first and last line of defense against prosecutorial overreach of the poor and indigent.
This is why Republican attacks on Judge Ketanji Brown Jackson for her record as a public defender ring so false. In yesterday’s hearing Sen. Graham laid into Judge Jackson for her prior work as a public defender defending Guantanamo Bay detainees. It should be noted that public defenders do not choose their clients. But that is beside the point, everyone subject to prosecution in the United States is entitled to representation. To paraphrase Oprah “You get a lawyer! You get a lawyer! You, Gitmo detainee, get a lawyer!” Sen. Graham misleadingly stated that Judge Jackson accused the government of acting as war criminals. What Judge Jackson actually did was point out that her clients had been tortured, which is a war crime. But that, also, is beside the point. Judge Jackson, as a public defender is obligated by her oath and legal ethics to fully and competently advocate for her clients. Torture is not just reprehensible, but violative of the laws of the United States and values we share as Americans.
Anyone with a rudimentary understanding of the criminal justice system understands the vital role played by public defenders. That is why it is particularly shameful when someone like Sen. Graham, a lawyer, blatantly warps reality and diminishes that critical work in order to score a few political points. Contrary to Sen. Graham’s implications, Judge Jackson did not support terrorists, she supported the U.S. Constitution by protecting their rights.
Rather than attacking Judge Jackson for her work as a public defender, Sen. Graham should have thanked her for her laudable service. Sen. Graham, an elected official sworn to uphold the Constitution, should have highlighted Judge Jackson’s time as a public defender as evidence of her devotion to the Constitution. Instead, he peddled dishonest and misleading attacks. Worse yet, he engaged in performative outrage and ran to the media to produce a soundbite.
Is it too much to ask that our elected official engage in honest discussions? Is it really so terrible to ask that they sometimes set aside their interest in power and simply do their job? It is too much… I know… But I will never stop hoping for more and being disappointed when they fall short.
Why the American Political System is Broken – Part I
Money. It is a disease that has infected almost every politician. It is a cancer that has metastasized throughout the entire system. Money. It has created a system that is increasingly undemocratic and unrepresentative. Let’s take the most obvious symptom of dollar disease – if you are rich, you can, legally buy your way into office. The case in point, Donald Trump. On the one hand Trump is objectively repulsive. On the other hand, his repulsiveness struck a chord with many Americans. And in the middle of his repulsive charisma is the $66 million dollars of his own money he spent to be elected (he claims it was $100mil). Trump wholly lacked experience and qualifications to hold the office, but $66 million helped overcome that failing. To be fair, it is not only Republicans but Democrats too. Governor J.B. Pritzker won his seat in Illinois after spending $171.5 million of his own money. Frankly, Gov. Pritzker was among the least qualified and least experienced of the democratic primary candidates. Yet, here we are. I am sure if I spent just a few minutes with Google I could find more examples (off the top of my head - Rick Scott, Bruce Rauner and Mike Bloomberg).
Of course, there is a defense to the ultra-wealthy in government and self -funded campaigns. One could argue, that when a candidate is not reliant on campaign contributions, they are not beholden or captured by donors. Sure, I’ll buy that. But I’ll never be convinced that an elected billionaires aren’t coming into office with their own entrenched personal interests.
More to the point, if the norm is to contribute millions to your own campaign, then the barriers-to-entry to run for office become too high. Public servants, academics, or anyone that falls short of millionaire status is blocked from access, no matter how qualified. To be a representative government, elected office must be within theoretical reach of anyone. Who understands the middle class better than the middle class? Who understands what it means to struggle than someone who has struggled? How in touch with the plight of the working poor, or the concerns of the middle class is a billionaire that is the child of billionaires? What do the cost of groceries mean to you if you have never grocery shopped.
The good news is the solution is not that complicated. Cap the amount an individual can donate to their own campaign. This cap would need to apply to the candidate’s family and any businesses they own as well. That would be a small step but potentially effective step in lowering the barriers-to-entry.
Billionaires in politics is only one symptom of the disease. Another symptom is the astronomical amount spent on political campaigns. The Trump campaign raised nearly $800 million. President Biden’s campaign raised over a billion dollars. The real problem, though, is not presidential campaigns, it is local races. Congressional candidates in the 2020 election cycle raised $3.9 billion. State level candidates raised approximately $1.7 billion. Millions of dollars could be raised and spent in a single Congressional District. My guess is that if the data were examined there would be a correlation between how much a candidate raised and spent and whether they won their seat. Candidates shouldn’t be able to buy their way in. It is undemocratic. A candidate should be able to win based on their ideas, qualifications and experience. Those factors are certainly secondary today.
One obvious remedy is public campaign financing (this is much more complicated that it sounds, but that is another discussion). Candidates receive their campaign funds from government coffers. This, quite obviously, evens the playing field. The ability to self-fund is no longer an advantage. Imagine a system where the candidates had to duke it out over ideas and policies…. Weird right?
Another solution is campaign financing caps – A campaign can raise and spend a $100k (the number is an arbitrary choice). This eliminates the embedded advantages held by the ultra-wealthy. Yet another option, is to prohibit corporate donations and better control individual contributions. Establish rules that make every campaign a small donor grassroots campaign. However, these solutions only work if dark money, and Super PACs are also addressed. Those issues are even more difficult and require better minds than mine to sort out. But to preserve democracy, dark money and Super PACs must be controlled or eliminated.
There are so many aspects of money in politics that warrant discussion, but I am tired of writing this blog. The bottom line is that our political system has been hijacked by the wealthy and by corporate interests. The good news is that the solutions are not really that complicated. The bad news – the people who can enact those changes are the same ones who benefit most from the status quo.
I started this essay with the idea that there would be a Part II. I cannot remember what that was now.
Our Response to Ukraine exposes our hypocrisies, it is also not wrong.
The world is watching as Russia demolishes Ukraine. We wring out hands and express platitudes of support for the Ukrainian people as hospitals and evacuees are bombed. The 24-hour news cycle airs endless clips of the devastation being wrought on Ukrainian cities. All eyes are on eastern Europe. The political parties have found unity in condemnation of the violence. The U.S. along with its European allies have put in place, arguably, the most meaningful and economically devastating sanctions ever imposed.
It is, arguably, morally, and strategically correct for the U.S. and its allies to do everything in their power to end this conflict (short of military action). But it is also hypocritical. Wars are fought throughout the world every day. There are horrendous, heart-breaking humanitarian crises all over the world, but our gaze does not fall upon those tragedies. According to UNICEF there are 2.3 million children under the age of five suffering from acute malnutrition in Yemen. If you turn on CNN, do you hear much about that? Is anything at all mentioned on Fox News? Have our political leaders taken any kind of action to end that crisis? Humanitarian crises seem to matter more when they occur in Europe. Poland has opened its doors and arms to Ukrainian refugees, but not long-ago European borders were being closed to refugees from Syria.
Supporting democracy is a goal most American politicians will give lip service to (though this has dramatically changed in recent times). In Myanmar the democratically elected President was deposed by the military (that President had her own crimes to answer for, but that is beside the point). Where was American support for democracy then? Where was the media. Democracy matters more when it is threatened in Europe.
The hypocrisy is plain. One need only be peripherally aware of the world to recognize the contours. And yet… the war in Ukraine is different, and different in a way that, partially, justifies the attention. The most basic difference is that Russia is a nuclear power. Indeed, Russia has more nuclear weapons than any country in the world (U.S. included). A shooting war with the world’s largest and most volatile nuclear power is an existential threat. That this war is occurring on Europe’s doorstep, on NATO’s doorstep, exponentially increases the danger. NATO has been the cornerstone of the post-cold war U.S. and European security. The U.S. has inalienable obligations to its NATO allies. If Russia attacked a NATO member the U.S. must defend that nation. The consequences of a miscalculation by Russia or the U.S. and by extension NATO could be incomprehensibly devastating, to the world.
The likelihood of a shooting war or nuclear conflict between the U.S./NATO and Russia remains low, but that probability is still the highest it has been since the Berlin wall fell. The point, though, is not probabilities, it is consequences. The possibility of nuclear war, however remote, requires that the whole world pay attention to Ukraine. The war in Ukraine is a threat to the security of the entire world. For the sake of U.S., NATO, and world security there is no choice but to support Ukraine.
For what it is worth, my belief is that we, as citizens of the U.S. and world, should be supportive of Ukraine and do what we can to end the war and alleviate the suffering. However, at the same time, we should take this moment examine whether foreign policy should be dictated solely by security and economic interests. Isn’t there room for generalized compassion? Isn’t there a way to standup for human rights not only when it is important to our own national interest, but also when it is inconvenient?
Congressional progressives have addressed a similar critique in the days since the war in Ukraine commenced. They have been criticized for utilizing “whataboutisms”.Which is a horribly simplistic argument that relies on the avoidance of complex thought. It is not inconsistent to voice support for Ukraine and sanctions on Russia while also asking that the U.S. and the world do better in other parts of the world. Is not this the time to consider our role in the world.