November 2013
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Rags and Bones

by Jonathan Wallace

Law review articles

An article in the Times for October 22 relates that law review articles have fallen out of favor with the Supreme Court, are not to be used in oral argument, are cited in opinions far less often. Chief Justice Roberts is quoted as saying that the average article seems to be on the influence of Kant on 18th century Bulgarian jurisprudence, and not on anything practical. This sounded credible for a moment, until I realized that the justices who can write opinions like Citizens' United, which so clearly fly in the face of the values shared by the Framers, would understandably not want to read law review articles on a high philosophic level: these might remind them it is their responsibility to make decisions which will resonate for a century or more, and not simply respond to the transient desires of people like the Koch brothers. The fault is not in the law reviews, but in the quality and intellectual will of the justices.

Reprinted almost without comment

Headline on the first page of the Times business section for October 29: "House, Set to Vote on 2 Bills, Is seen as Ally of Wall Street". Both bills prune back Dodd-Frank, one, at this late date, after the horrifying 2008 crash for which no-one has been prosecuted, would "exempt a wide array of derivatives trading from new regulation". And then there's this:

But simply voting on the bills generates benefits for both House lawmakers and Wall Street lobbyists, critics say. For lawmakers, it comes in the form of hundreds of thousands of dollars in campaign contributions.

Why is this all right? How is it morally different than bribery? The semi-concealed oligarchy of my childhood is becoming an open oligarchy.

A terrible trade in Israel

Politicians frequently fail to appreciate the horror of connections they make in their speeches and symbolic public acts. Himmler did it in his famous secret speech to the S.S., in which he praised them for remaining "good fellows" despite participating in mass murder. The Netanyahu government (yes, I know its not P.C. ever to relate Nazis and Israelis) horrified me by releasing imprisoned Palestinian killers in lieu of agreeing to freeze settlement construction. There are two possible explanations, both disturbing. On the most charitable level, this was a bone thrown to the settlement fanatics, who, much as they hate the Palestinians, would rather that survivors suffer than that they lose one settlement on Arab land. That would be bad enough. But it feels like a concealed oligarchical choice, that insiders with money (billionaires who build or back settlements, and who make contributions to right wing politicians) are inside a charmed circle of care and support, while the families of murder victims, mainly ordinary people of the other classes, are outside. Repeated Israeli freeing of imprisoned killers, always as part of some kind of deal with Hamas or with the P.L.O., also encourages more killing, as would-be mass murderers, instead of expecting life in an Israeli prison, can look forward to early release and a hero's welcome back home.

Spying on allies

Our government's surveillance, of everybody in the environment, is vastly out of control. The latest revelation (thanks, Mr. Snowden) is the wiretapping of German chancellor Merkel's cell phone. The NSA spies on American citizens, on allies, on everyone. The dishonesty and deceit, the disrespect, the chilling effect, the deprivation of privacy all illustrate that our government has, through lack of checks and balances, become maximally monstrous. I can't wrap my mind around the fact that President Obama, supposedly a liberal Democrat, has spent his time either defending surveillance or claiming he didn't know (which is a lame excuse). This needs to be rolled way, way back, but that would require a President and Congress of great courage and less internal bickering.

Affordable Health Care

I am a guinea pig for the new health law (which I supported, and I haven't (yet) quite stopped). My group coverage was unexpectedly terminated because not compliant with the new rules. I made thirty to fifty attempts to log in to the New York State website, create an account, populate it with information, review my choices and select coverage. I got kicked out with every imaginable error message and apologetic screen. Finally, I chose pretty damn good Emblemhealth coverage, slightly less expensive than the coverage I'm losing and much more comprehensive. I was ready to be ecstatic after all. But the invoice and email I was promised would arrive from Emblemhealth within 48 hours has not come in three weeks. I called the company yesterday and was told to be patient. In the meantime my existing plan is evaporating on January 1, so I'm nervous.

There was no real reason for me to lose my existing insurance. My best guess is that its going away because the new law requires the plan sponsor to contribute a percentage of my premiums. But that can't happen here because the sponsor is not my employer, but a nonprofit which created an opportunistic group to give coverage to New York theater people who might not otherwise find insurance. That was a pretty good motive, and I don't see why the new Act should wipe out those kind of plans. I assume it was an unexpected consequence, something nobody thought about while writing a very complex law.

How much simpler would be : single payer, single payer, SINGLE PAYER. A Martian, or someone reading a history book of our times in 500 years, would be very confused by the fact that we have single payer that works really well, called Medicare. Why did we need to complicate things, instead of making everyone eligible?

Too costly? Let's stop spending billions on secret NSA spying and allocate it to health care instead. (Love linking up apparently unrelated stories.).

Super-majorities and filibusters

Its time to end filibusters and requirements for supermajorities in Congressional votes. Its simply bizarre that Democrats have a Senate majority yet can't confirm the President's nominees. Republican minority leader Mitch McConnell said "They've admitted they want to control the court so it will advance the president's agenda". He's referring to the D.C. Circuit Court of Appeals, to which the Senators shot down a centrist nominee who previously served in Republican administrations. Sheesh-- that's exactly what the Constitutional appointment power is supposed to allow the President to do when he has a Senate majority.

Why hasn't the Senate ended these extraordinary nonconstitutional procedures long since? Presumably the Democrats want them for the next time they are in a minority. If that happens, I am happy to live with the consequences, in return for a majoritarian, non-oligarchical style of government now.

Sad court results

There were two stunning setbacks in federal appellate courts in twenty-four hours. The Second Circuit Court of Appeals forced Judge Shira Sheindlin to recuse herself from the stop and frisk litigation, in which she ordered New York City supervised by a monitor. And the Fifth Circuit vacated a preliminary injunction issued by a trial court, with the result that a third of Texas abortion clinics will close their doors immediately.

Speaking of oligarchy, as I keep doing. New York is an increasingly black and Latino city, governed by white guys at ease with Wall Street. The cops, who are supposed to represent and protect all the people, stop random teenagers and young men in black and Latino neighborhoods, find pot or cocaine, send them to prison and therefore guarantee permanent membership in an underclass that can't get jobs or education. It is stunningly obvious to me that if the cops conducted a similar stop and frisk operation on Wall Street stockbrokers arriving for work in the morning, they would find an equivalent amount of drugs. The mayor, police commissioner and other members of the oligarchy all insist that stop and frisk is race blind, so why not conduct at least the occasional Wall Street operation to prove that is true?

Stop and frisk is a grotesque survival of American racism, blatantly unconstitutional and needs to stop now. Judge Sheindlin was doing good work, badly needed work. Results like this undermine my confidence in the fairness of the judicial system; I (naively?) expect federal judges, who are appointed for life, not to be oligarchical tools.

The Texas case is similar: the far right does not even attempt to conceal the fact that it is looking for unnecessary, but hard to fulfill, requirements to impose on abortion clinics, to force them to close. "All abortion providers are hereby required to keep a working anti-gravity device on the premises". This law requires clinics to use doctors who have admitting privileges at a nearby hospital. Local hospitals don't grant these privileges to abortion doctors out of politics and fear, or (in a more honest case) because abortion doctors rarely need to admit anyone (there are few abortion emergencies). If someone did start to hemorrhage during an abortion, an ambulance would take her to the nearest ER, which would treat her the same as any patient whose doctor had admitting privileges. The new Texas law serves only one purpose, closing clinics. Like claiming stop and frisk isn't racist, claiming the Texas law protects women instead of harming them is a great big lie.

Medicaid expansion

A shout out to Governor Kasich of Ohio for breaking ranks with the Tea Party-cowed Republican party and accepting the Medicaid expansion for his state. In a time in American history of maximum doublespeak in the service of a consolidating oligarchy, the Republicans are making war on the working class, yet will need their votes. Its nice, in the service of democracy, that there is an occasional Republican realist who recognizes that the way to get votes is to address the needs of voters, not lie to them.