Horrible Comparisons

In a Martin Luther King Day speech Hilary Clinton said the Republicans are running Congress like a plantation, referring to the slave plantations in the American South. Republicans claimed foul, even though Newt Gingrich said almost exactly the same thing in 1994, when the Democrats controlled the House.

Some people question whether comparing current political troubles to the suffering under slavery trivializes the horrors of that era. Comparing one’s political opponents to Nazis has fallen into disfavor, with most politicians taking the position the Holocaust was so horrible that nothing could compare to it. But what about comparisons between Nazi Germany and the American South of plantation slavery?

The Nazi and the Southern slaveholder societies had much in common. They both identified what they called an inferior race and used the government to establish and defend a system of race based oppression, slave labor and inhumane treatment. Both ended up fighting a War against forces who wanted to end the perverted systems of oppression but who had for too long tolerated it, and both oppressors were soundly defeated.

But there are at least a couple significant differences between Nazi Germany and the slaveholding South. The first difference is one of duration. Nazi Germany lasted for less than 25 years, but slavery in America existed for almost 250 (including over 150 years in the North).

The second difference is one of fundamental nature. While the Nazis wanted to exterminate the Jews,American slaveholders wanted to see their slave numbers increase. Jews were in Germany for centuries before Nazism was fabricated and they had prospered in spite of prejudice. The Nazis resented the Jews and first wanted to emasculate and enslave them and finally to destroy them, with six million being slaughtered before the Nazis were defeated.

A handful of free Negroes were in America before slavery was sanctioned, but in order to develop the system of exploitation, millions were kidnaped from Africa. Slaves were the most valuable items of personal property an American slaveholder could “own”, so slave women were encouraged to have children, with the “encouragement” often being in the form of sexual exploitation by white slave masters and overseers . Four million slaves were freed by the defeat of the Confederacy.

Nazism in Germany and slave holding in America are held in similar disdain now. Nobody in their right mind would advocate a return of those systems (though Trent Lott edged in that direction in his remarks honoring Strom Thurmond). But only descendants of the people who were oppressed seem to care about preserving the lessons of those times of oppression (the predominantly black audience for the Clinton speech was very receptive to her plantation reference). Descendants of the oppressors always want to leave those times behind and play down the idea there were any lessons for them to learn ( many American Southerners think the only lesson of the War that took the second most American lives in history is that the Northerners were immoral aggressors).

Imagine if Nazism had lasted longer and Jewish slave labor had become a viable economic enterprise. Nazis probably would have emulated the American slave holders and substituted propagation for extermination. Germany would now be a nation with a significant population of people who had both Nazis and Jews for ancestors. Which ancestors would they be expected to admire most? The obvious answer should be kept in mind when we see African Americans, the source of whose bi-racial heritage white Americans too often ignore, embracing their black roots.

Here is the official statement of Senator Clinton commemorating the King holiday.

Lowering the Zenith

In 1973, as part of the Congressional effort to get our last military forces out of the Vietnam quagmire and to better prevent us getting into such involvements in the future, Congress passed the War Powers Resolution, asserting its constitutional rights regarding commitment of US forces.

In the knee jerk response to the 9/11 attacks, Congress passed a joint resolution authorizing the use of force against the attackers, saying it was doing so in compliance with the War Powers Resolution. In acknowledging the authorization of the use of force, George W. Bush asserted the position that the War Powers Resolution is not a valid restriction on the executive powers of the President.

In the week following the terrorist attacks, there was no actual debate of the proposed force resolution in Congress, though some members questioned whether a resolution was even necessary and others wondered whether some sort of declaration of war should be made. The joint force resolution as passed was for such force as “necessary and appropriate”.

During the week after 9/11, Senate Majority Leader Lott spoke of the resolution, “I believe that it's broad enough for the president to have the authority to do all that he needs to do to deal with this terrorist attack and threat. I also think that it is tight enough that the constitutional requirements and limitations are protected [emphasis supplied].”

Also during that week, Attorney General Ashcroft spoke of a need for broader eavesdropping authority, but he indicated it should come by specific Congressional authorization. He did not say it would be considered as included by implication in the joint force resolution. Press briefings at the time said, “Attorney General Ashcroft is now calling for quick Congressional action to change the law to give federal agents greater rights to eavesdrop on telephone calls. Authorities are now required to get a court order to tap phone lines. But Mr. Ashcroft believes such restrictions hamper law enforcement since suspected terrorists are able to evade wiretaps by using mobile phones, laptop computers and other state of the art technology.” And, “President Bush told reporters Sunday any changes in the law should respect Americans' right to privacy but that law enforcement needs to have new tools to fight the kind of threats the nation now faces.”

Perhaps more forthrightly, on that same Sunday after the attacks, Bush responded to a broad question about options he would use. “Q: Mr. President, what kind of military options are you considering, if you could talk broadly? THE PRESIDENT: This is an administration that will not talk about how we gather intelligence, how we know what we're going to do, nor what our plans are. When we move, we will communicate with you in an appropriate manner.”

Now it turns out Bush quickly and secretly authorized wiretapping without court warrants. Members of Congress have challenged the authority of Bush to do so, and the Justice Department, in preparation for imminent Congressional hearings on the issue, has just released a white paper primarily saying the wiretap authority was included in the joint force resolution which put the President at the “zenith” of his powers.

I think the white paper is wrong and Congress did not authorize Bush to eavesdrop as he has been doing. But I also think hearings into the matter are a waste of time. Congress should instead pass a new resolution saying that the joint force resolution was not intended to allow such eavesdropping without warrants, and that Congress now specifically indicates such practice can only be authorized by specific Congressional legislation, such as Attorney General Ashcroft indicated at the time the force resolution was passed.

As an amateur etymologist, I find the use of the word “zenith”interesting. If it is not that familiar to Americans, Arabs should better understand it, since it is Arabic in origin, meaning the upper pole of the celestial horizon - a location I am sure Bush feels is appropriate for him. The opposite, low end of the pole is the “nadir”. I wonder if that is the origin of the name of the son of Lebanese immigrants to America -Ralph Nader- subject of this interestingly different biography.

Death with Dignity

Yesterday’s U. S. Supreme Court ruling upholding the Oregon voter approved Death with Dignity law and striking down efforts by the Bush administra-
tion to negate it has some interesting aspects.

Though the Court has previously ruled there is no constitutional right to die, the Oregon case indicates the Court is indeed open to letting the States determine to what extent they want to allow doctors and patients to decide when a terminal illness might warrant facilitating euthanasia [the word comes from the Greek words for “happy death”].

I tried to read the Court opinions and quickly discovered they contain no profound philosophizing on the concepts of life and death. Instead, the opinions discuss the application of technical rules of statutory construction and the application of principles of rule making delegation within the executive branch of government. Ashcroft the Zealot had pronounced a rule declaring that the drug laws passed by Congress make the medical practice of euthanasia illegal even if a State chooses to permit it. The Court said the Attorney General was out of his turf in making rules regulating the practice of medicine, especially since he gathered no medical evidence in support of his rule and the Secretary of Health and Human Services would be the appropriate official to make such a rule. The Court further indicated such a rule goes beyond what Congress intended to cover under the existing drug laws and questioned whether such a broad Federal rule on medical practice might violate some constitutional principles of the balace of power between the Federal government and the States.

Not without expectation, Scalia and Thomas dissented from the majority, opining that Ashcroft should be allowed to ban euthanasia nationwide. Unfortunately, the new Chief, Roberts, joined the dissent, perhaps verifying his conservatism. The majority opinion was written by Justice Kennedy, who has been considered a moderate conservative, along with Sandra O’Connor. In fact, except perhaps on abortion related issues, I think O’Connor has been more conservative than Kennedy. Hopefully, Kennedy writing this opinion is a harbinger of his movement to be less conservative as a balance to the new Chief and probably to Alito when he is confirmed.

Congress could try to re-write the drug laws to outlaw euthanasia, but the Democratic Senator from Oregon has said he would filibuster any such attempt. The Republican Senator from Oregon issued a brief statement saying the ruling of the Court upholding what the voters of Oregon overwhelmingly approved should be left alone. Oregon has a tradition of independence which is often manifested in its politicians. Wayne Morse of Oregon was one of the first Republican Senators to challenge the legitimacy of the Vietnam War.

There will be no rush of States to pass Death with Dignity laws in the wake of the Court opinion. Nor will there be a significant attempt by conservatives to make the case a campaign issue, with the Terry Schiavo experience showing the public thinks politicians should not use terminal patients for political purposes. The medical community nationwide, in the seven years since initial approval of euthanasia by Oregon voters, has paid more attention to the need to freely medicate terminal patients to relieve pain and has become more supportive of the hospice movement. In fact, in those seven years, only about 230 Oregonians took advantage of the law to end their lives.

2005 Book Report

Here’s my 2005 book report. Once again, most of the books I read were from libraries, though my number of library visits, 14 to Renton and 3 to the King County Library, was a little smaller than in prior years. Via the Internet, I did buy a few books, new and old, but I bought more from the Half Price Books sale rack. Three of the books I bought were on my list of reading favorites from last year.

The number of books I read was just a little over half of the number for prior years, and many of the books I checked out I did not finish reading. Especially on political subjects I have been doing much more of my reading over the Internet. Though the quantity of books read diminished, the diversity of subjects expanded.

Without any ranking, here is a list of a dozen books I considered either excellent or very good:

Atonement - a novel
Mornings on Horseback - biography
God, a Biography - religion
Writing Life Stories - a memoir writing guide
Homegrown Democrat - a memoir
Gifts Differing - personality analysis
Please Understand Me - personality analysis
John Adams - biography
Exporting America - political economics
Big Russ - memoir
Nickel and Dimed- political economics
Miracle at Philadelphia - history

I have no particular plans for reading topics this year and will probably just go where my interests take me. What did you read in 2005 that you would recommend?

Alito Will Be Confirmed

I have been watching the Senate Judiciary Committee confirmation hearings to determine the qualifications of Judge Samuel Alito to serve on the U.S. Supreme Court. These hearings bring forth many issue for future discussion here at Sense. But for now, here is my opinion on how Alito is coming across and my initial views on the issues as handled by him, and why I expect he will be confirmed.

Sam Alito is not a man of any particular warmth, empathy, charm or sense of humor. But he does come across as attentive, responsive, knowledgeable and informative. His responsiveness, though not complete, is refreshingly more extensive than recent candidates, particularly John Roberts whose mantra was to decline to respond because a future case might involve the issues about which he was being queried.

Alito is a very capable judge who will be confirmed for the Supreme Court and who will decide cases based on the facts of the case and the technical application of the legal arguments presented, guided by prior Supreme Court decisions. As a judicial technician, he obviously is an impressive expert. Lacking empathy and lacking experience as a trial judge, he is very unlikely to let sympathy for any litigant affect his views, a point demonstrated by his 15 years of decisions on the Court of Appeals. But he is also unlikely to harbor significant prejudices which will affect his opinions.

The consensus top issue is Roe v Wade and whether or to what extent that ruling on abortion might be changed. Alito was evasive about his personal position, and somewhat hesitant to fully endorse Roe as settled law. Unfortunately, when he did set out a list of criteria to be used in deciding whether to overturn a prior case, the Senators, who were more interested in making their own speeches and following their own agenda, failed to engage in a discussion of those criteria with Judge Alito. I think Alito is open to arguments to whittle away at Roe, but not to outright overturn it.

Alito agreed that even the U. S. President is not above the law, but the hearings did not shed much light on what laws the President might be able to disregard, especially in the name of “national security”. In fact, there is not much case law on this subject, and if Bush can be replaced with a more law-abiding President, the issues will recede. Alito might be inclined to give a President a little more leeway since his professed admiration for the ROTC indicates an inclination to favor the military mentality.

Senators of both parties have been critical of the Rehnquist Court for trying to restrict the power of Congress to legislate. One case of concern was Alito ruling against a Congressional ban on sub-machine guns. Alito explained his ruling was based on Congress failing to include a proper statement of fact finding in the legislation - a technical reason which Congress could easily remedy. There is no indication Alito is on a mission to restrict Congress.

The case where Alito upheld a strip search of a ten year old girl was another technical matter. The question was whether the search warrant for the premises of a drug dealer allowed searches of others present. The affidavit on which the warrant was based, Alito decided, had been incorporated in the warrant and technically allowed the search, to look for contraband the dealer might hide on other persons, including children. Though Alito made reference to concerns for the child, his innate lack of compassion was apparent, even though his decision was probably sound.

In a 1985 application for a lawyer job with the Reagan Administration, Alito stated pride in his membership in a conservative group opposed to the move away from a white male student body at his Alma Mater, Princeton. It seems to me he joined only to suck up to his prospective employer, and he had no real interest in the group or agreement with its positions. His only professed recall is that he may have joined because he had been upset when the ROTC program was kicked off campus during his time at Princeton. Since receiving a lifetime judicial appointment in 1990, he has had much less reason to suck up, and he has given no indication of sucking up to Bush to get this nomination.

Criticism of Alito as coming down against the little people in labor and discrimination cases may be ignoring the fact that the laws are heavily weighted against little people to begin with, and there is not much the courts can do about that. Granted, he is not likely to be an “activist judge”, as the conservatives say, and make rulings that go beyond what the law currently requires, but there is also no particular indication he will be a negative activist, trying to further peel back rights of little people.

A claim that Alito heard a case in which he had a conflict of interest was adequately addressed by him in pointing out that it was one case that slipped through the cracks in 15 years on the bench, and that he corrected the mistake by getting a new hearing for the parties with new judges, who then ruled the same way Alito had.

Here are some topics for further Sense discussion, prompted by these hearings: Roe, abortion, overturning prior case law, curbing abuse of Presidential power, and racial discrimination [for all the concern expressed during the hearings for people of color, I noticed that the room was packed full of people, all of whom were white except one young female staffer and a male member of the extensive pool of photographers].

Be It Resolved

Here is an article from a Seattle area newspaper with some professional advice on how to make and keep your new year’s resolutions. Some thoughts from my experience with resolutions are set out below.

Somewhere during the years of running a solo law office, I started making new year’s resolutions as a sort of one year business plan. Since the office and personal life of a lawyer can be quite integrated, I decided to flip the office resolution page over and make personal resolutions on the other side. I put them in one sheet protector, back to back, so they could make it through the year without getting dog-eared or discarded. In retirement, my sheet protector has writing only on one side, but if you still work for a living, consider having a set on each side.

Ten is a good number to use, carrying weight like the Ten Commandments, but also levity like Letterman’s Top Ten. With ten, you have ten chances to do better. Instead of saying the glass is half empty, you can say it is 5/10 full. Continuing with the liquid metaphor, water down your goals. Lowering your aspirations means you have a higher chance of success. As the psychologist points out in the newspaper article, resolutions are part of the process of change. The first success is actually making the list of resolutions. As you get more experienced, you can include a few harder ones in the list of ten. I don’t place my ten in any particular order or rank.

I like weasel words in resolutions, such as “consider”, “start”, “continue”, “work with” and “expand”. I don’t quantify the goals in absolute terms like “50 pounds” or “five hours a week”. I prefer relative terms like “some” and “more”.

I keep the sheet protector somewhere on my desk top area, so I can dig it out when I think of it, or as more often happens, I can quickly glance at it when I accidentally run across it. Remember “Rome wasn’t built in a day”. You have all year to work on making progress, so don’t burn yourself out before Valentine’s Day.

Give yourself a progress report. As you come across your list every so often, read through it quickly and make mental note of how you are doing. In the middle of the year, pull the list out of the protector and pencil in a letter grade next to each resolution. This will give you guidance for the second half of the year. Then score the list again at the end of the year, and use your report card for making the next year list. A resolution will often be included for several years and then maybe dropped, either as you earn an A and no longer need to work on it, or because after years of a low grade without progress you realize it will probably never change. Weasel words can be used to water down a perennial failure, but if liberal watering does not bring growth, you may need to recognize it is dead.

Here are my 2005 grades: B, B, C, D, C+, B-, C-, B, E, B. But what were my resolutions you ask? Here is my final tip: Keep your list to yourself, so you can credit yourself for every encouragement - and have no one else to blame for any discouragement.