May 2014
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Rags and Bones

by Jonathan Wallace

Cliven Bundy

This month’s lead article starts off discussing Bundy as a free rider in the American economic system. What I don’t mention: how predictable it was that, given everything else we knew about him, he would turn out to be an Old Stone Age racist as well. Therefore, all mortality and politics aside, it was tactically foolish for Fox News and Republican politicians to make a fuss about him, as it was foreseeable he would betray them with some laughable utterances they would then have to disclaim.

Black boxes, again

I have been saying this for two months, but let me try it a different way. Sometime in the 1980’s, I took a portable computer out on my back deck in the sun, typed a legal brief for three hours, then kicked out the extension cord by accident and lost all my work. Thirty years later, I am typing this on a Chromebook on which that could never happen, because this machine automatically saves my work in the cloud as I type. In those same thirty years, nobody has introduced a similar innovation for airplane black boxes. That is why at immense expense and difficulty, we are sending robotic submersibles three miles below the surface in parts of the ocean where we are not even sure flight 370 came to rest.

Florida and warming

Florida is washing away in a rising sea, but is run by people who deny human-induced global climate change. This is not unusual, but red states on the ocean are particularly pathetic. I keep thinking of Woundwort, the self-deluded rabbit general in Watership Down, shouting “Dogs aren’t dangerous!” as he launched himself into the slavering jaws of a huge mastiff.

General Mills arbitration clause

I find evidences of growing inequality everywhere. Here is a relatively small but very symbolic one: General Mills’ attempt to say that if you buy its cereal, or at least if you accept an offer online or participate in a forum, you have waived some legal and procedural rights. An important subtext here is the use of the Internet, which twenty years ago we all thought was an ultimately home-made democratic medium, as an architecture promoting power and inequality.

J Street

I don’t know much about J Street, a Jewish organization promoting peace in the MIddle East, but what I have seen I agree with. There was a flap last week when they were rejected for membership in a conference of American Jewish organizations. It underlined the extent to which, regardless of how ordinary Jewish people like me feel, the public discourse, perception, and politics of American Judaism is dominated by the Israel-can-do-no-wrong crowd, of whom Sheldon Adelson is merely an extreme example.

Botched execution

The botched execution of Clayton Lockett in Oklahoma was as predictable as Cliven Bundy’s racism, and tactically as avoidable. Like the Bundy flap, the Lockett debacle was another example of ideology making smart people stupid: keep the drug cocktail and its sources secret, bully the judges who granted a stay, rush the execution and then accidentally torture Lockett to death! It was an almost perfect SNAFU.

Hanging in the air was the “So what? He had it coming” defense: the man shot a young woman and buried her while still alive, so good on him and on us if he suffered terribly. The problem with the death penalty in today’s society is that, in administering it, we are trying to wear two faces at once: to be brutal while appearing to be humane, which is a very tough combination. This is not a new historical problem. When his jailer brought Socrates the hemlock, Socrates asked if he could pour part of it off as a libation. The jailer replied regretfully, no; “We only prepare the necessary dose, Socrates”. I imagine Eric Idle playing Socrates’ jailer in the movie version, with the same kindly smarmy expression he had as the courteous bureaucrat distributing crucifixes in Life of Brian.

“Humane killer” is really an oxymoron, and Oklahoma tried but failed to live an oxymoron. I therefore propose a thought experiment I call the “mallet test”. If we want to have a death penalty, we should be willing, if the drug cocktail doesn’t work, to finish off the victim, I’m sorry, the condemned man, by smashing him in the head with a mallet. If we don’t want to be that kind of person, who can personally kill even a killer with a mallet to the head, we shouldn’t have the death penalty.

Supreme Court prayer decision

I haven’t read the decision yet, so say the following very tentatively. The Court seems to have taken a big step towards establishing the Christian religion, and even fundamentalist Christian religion, in government meetings while pretending it was doing something else entirely. In theory, the regime the court endorsed claims to allow us to demand that our own beliefs be heard at a meeting, and obligates governments to change the opening prayer up accordingly. The Town of Greece in upstate New York will permit a Jewish prayer one week, a Muslim prayer the following, then a Wiccan and then one to the Flying Spaghetti Monster, right? What about an atheist invocation (that was really unclear). In reality, we all know perfectly well is that the intent is to allow Greece to invoke the majority religion of the town week after week, emphasizing the marginality of everyone attending who doesn’t share it.

The Clippers Owner

The flap about offensive racist statements made by the Los Angeles Clippers Owner Donald Sterling is a very interesting case study in the collision of competing values of equality and free speech. On the one hand, racist speech is First Amendment-protected. On the other, our Fifth Amendment interest in procedural equality is harmed whenever someone in a position of power, a position to deny us access to employment or some other important good, launches into a poisonous rant. I wrote last month that I wasn’t worried by the resignation of the Mozilla CEO who had donated to Proposition 8 because I think anyone running a large company ought to share certain values regarding equality and not display bigotry towards a subsection of his employee or customer base. I am not overly upset either by the N.B.A. trying to force out Sterling either. Neither instance is an example of state power directly applied; I would oppose criminal laws against bigotry. You could say in the case of the Mozilla guy, Brendan Eich, less so in Sterling, that both were punished by market forces for taking a stupid stand that interfered with business operations. The First Amendment does not protect against the private consequences of speech. However, I am left uneasy by the prospect of someone being forced out as CEO of a similar company or sports team for, say, quoting Karl Marx or supporting abortion rights, so I acknowledge that this whole market forces/Noble Speech/Horrible Speech thing is a moving target.

Judge races

I think judges should be appointed, not elected everywhere. That doesn’t protect us completely against political hacks (witness Scalia), but over time has ensured more independent, thoughtful judges than elections do. In the last couple of years, we are starting to see the hit-and-run, highly hyped approach to judicial elections, with political adversaries trying to pick off judges with highly oversimplified and twisted references to decisions in which they participated. Any ruling that a search and seizure was unconstitutional can, for example, be categorized as being soft on criminals. (Ironically, Justice Scalia, with whom I disagree on almost everything, is a strong proponent of the Fourth Amendment.) The last straw is that billionaires like the Koch Brothers are starting to take an interest in local judge races. The result will be judges who carefully toe the party line, and are afraid to take any risk or issue any decision which cannot be explained in a sound bite--which is not remotely the role of a check on the other branches defined in the Constitution.