The Columbus Dispatch reports today that between 2016-17 the State of Ohio took drugs purchased by and intended for the state's Department of Mental Health and Addiction Services and gave them to the prison system to be used in executions. This despite warnings from drug manufacturers not to do so under threat of having drugs millions of people depend on, some to simply live, cut off.
Put more simply: the state thought it was so important to execute people that it was worth putting the lives and health of the sick and those in need at risk to make it happen. This -- along with empowering police to commit violence with impunity -- is one of the logical, violent end-points of the "tough-on-crime" political ideology. The place one reaches when one elevates vengeance above all other purposes of the criminal justice system.
And yes, there are purposes of the criminal justice system other than vengeance.
Rehabilitating criminals and making them productive or, at the every least, non-harmful members of society was once thought of as a laudable goal, but now it is considered too soft. Supporting such a thing makes one vulnerable to political attack ads, so no politician dares to publicly say they are for it. This is why parole is harder to come by, draconian mandatory minimum sentences exist, and capricious "three-strikes" laws are passed.
Simply incapacitating criminals and keeping them from committing more crimes is another purpose of the system. This one is seen as less wimpy by the tough-on-crime crowd, but it's difficult and expensive to house the convicted and doesn't satisfy that eye-for-an-eye bloodlust that seems so important.
So we're left with vengeance.
The problem, though, is that those who adhere to a code of vengeance do so out of the belief that it is mandated by God or some higher, moral power. As such, there is no end seen as more righteous and thus there is no price too high to pay to achieve it. Even if it means harming the sick and needy to see that vengeance is done.
But it's morally abhorrent. Vengeance is not ours. I'm ashamed to live in a state that believes it is. I'm ashamed to live in a state that values state-sanctioned killing above helping those in need.
Over the weekend a report emerged detailing how Supreme Court Justice Brett Kavanaugh’s confirmation process was aided by a fast-tracked FBI investigation which failed to follow up with dozens of witnesses with potentially damaging information on the nominee. It also includes new allegations from a witness who says he saw Kavanaugh push his penis into the hand of a female student at Yale. It was an allegation the witness told the FBI about last year but which they failed to investigate.
The new report has led to calls for Kavanaugh's impeachment. Such calls will likely go nowhere given current political reality. I will reiterate, however, that no matter what comes of the current news cycle, Kavanaugh is unfit to be a mere lawyer, let alone a Supreme Court Justice. He should not only not have been confirmed last year but he should probably be disbarred.
Most people are viewing all of this, both last year and now, with reference to the standard of what one can get away with in politics. On that score, sure, Kavanaugh is probably fine in today's graceless and shameless political age. He had and still has sufficient support (i.e. the Republican-controlled Senate). In politics, especially these days, that's all that matters.
Kavanugh, however, is not merely beholden to political processes. As I wrote last year, as a lawyer and a judge, he's beholden to the standards of legal and judicial ethics, which presents a far higher bar.
It is manifestly clear -- and was clear a year ago -- that Kavanaugh lied under oath during his confirmation hearing. Partisans contend that they were lies about minor details on relatively unimportant matters. They contend that they fall short of the sorts of lies which would typically bring forth a perjury charge. All of that may be true. All of it is irrelevant, however, because the standard of candor before a tribunal for an attorney and a judge is far, far higher than "that which is legally actionable for perjury" and no exceptions are made for "lies regarding unimportant matters."
As I wrote last year, a person can be denied a law license for lying about something that happened in college or even high school. A lawyer who even hints at misleading behavior during the course of trying a case or who even shades the truth under oath is subject to disciplinary action. The penalties for lack of candor before a tribunal are severe, and include disbarment.
Which is to say: Brett Kavanaugh would be unfit for office even if this past weekend's report never emerged. He'd be unfit to merely practice law, in fact. That, despite all of this, he is now ensconced in the highest and most powerful position in the entire judiciary for the rest of his life is a stain on the legal profession and on the nation.
"Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed." -- Antonin Scalia, Doe v. Reed, 561 U.S. 186 (2010)
Yesterday Congressman Joaquin Castro -- who is also chairman of his brother Julian Castro's presidential campaign -- tweeted out the names of several notable people and business owners in his district who made maximum campaign donations to Donald Trump. Castro said he did so because "their contributions are fueling a campaign of hate that labels Hispanic immigrants as 'invaders,'" and said that people should know who in their community are giving financial support for that agenda.
A backlash to Castro's tweet has emerged. Some of it is predictable, with Republicans calling it "targeting" or "shameful" and the Trump campaign itself calling it "reckless and irresponsible." Some members of the media, most notably the New York Times' chief White House correspondent, Maggie Haberman, have also taken issue with it, calling it "dangerous."
This is absolutely crazy.
The notion that listing names from legally-mandated public lists of political campaign donors is somehow out-of-bounds is unadulterated insanity. The ENTIRE POINT of campaign donation disclosure laws is for people to know who donates to whom. The ENTIRE POINT is to make it clear who is, or who may be, beholden to whom as a result of financial support for one's campaign. It's a an essential means of fighting corruption and promoting transparency in our political system and has been so for centuries.
The Republican response is particularly nonsensical. Republicans have sought -- successfully, I will add -- to massively increase the amount of money in politics under the guise of free speech. Their argument: a campaign donation is an act of free expression under the First Amendment and thus should not be limited, even in the case of corporations, who likewise possess free speech rights. For them to now claim that those exercising their all-important free speech rights should be able to do so in anonymity is deliciously hypocritical. Or it would be if, as I suspect, this little bit of outrage isn't the opening salvo in an effort to have campaign donation disclosure laws repealed. Short of that, the outrage likely centers on Republicans wanting to be able to hide just how much they support Donald Trump, thereby allowing themselves to say, later, when he is gone, that they never supported such a disgrace of a president and a human being.
The media's discomfort with this is likewise ridiculous. Reporters routinely do stories on campaign donations and donors, using the very same freely-available data Castro used to do so. Indeed, the same New York Times for which Maggie Haberman works published an article with the names of each and every donor to the Clinton Foundation -- thousands upon thousands of people -- complete with a searchable database a couple of years ago. And they were fully within their rights to do it. For them to now be uneasy with this shows just how easily they are swayed by -- or just how much they fear -- Republican outrage on any given topic.
Back in my days as a lawyer I spent a lot of time handling campaign finance cases before the Ohio Elections Commission. Let me tell you, there is NOTHING a corrupt politician wants more than to be able to hide who his donors are. The campaign disclosure laws seek to prevent that. And, given that the campaign finance system is itself overseen by political actors, the public nature of such disclosures is an absolutely essential component of the system. Citizens and the press must have access to this information. Indeed, the more they read and disseminate about campaign donations the better the system will be understood, the more people will know about who has power and who seeks influence, and thus the better and more transparently the system will function.
Of course, I have no idea if Castro's use of this information is good politics. It may not be. It could backfire. Or someone could use the same tactic against him or his brother to their detriment. Who knows? But the mere fact that someone -- even someone with a political agenda like Castro -- is using this information should be of no concern to the rest of us whatsoever.
An article appeared in the Washington Post yesterday about a lynching in Wytheville, Virginia in 1926. A man named Raymond Byrd was arrested after being accused of raping a white woman. He was killed in his jail cell by a mob, his body was dragged through town behind a car and he was hung from a tree. Only one person was ever charged with a crime after it occurred and he was quickly acquitted by an all-white jury. That was the end of that.
The Post’s story is less about the lynching itself, though, than it is about a man named John Johnson. Johnson is in his 80s and he has spent the past several decades researching Byrd’s killing. He has complied newspaper articles, documents and artifacts. Most importantly, he has complied a list of names of many of the people who likely took part in Byrd’s lynching. Johnson has been trying to figure out what to do with his information and how — or even whether — to publish it or otherwise make it public.
Part of the problem is that Johnson is a black man and fears both for his own safety and the safety of other blacks in Wytheville who have helped him in his research. It may seem odd for someone to worry about such a thing in 2019, especially over an event that occurred in 1926, but as Johnson’s story makes plain, racial animus and the desire to shield those responsible for racist acts has followed him his whole life and remains strong to this day, even nearly a century later.
But this is not just a matter of open and obvious racists standing in the way of enlightenment. It is the case even among those who are otherwise sympathetic with Johnson’s cause.
In the story we meet a fellow researcher — a white woman — who has information about the lynching and a list of several names Johnson does not, yet she is unwilling to share it with him. Why?
I’ve got relatives all over the county, and I don’t want to hurt them. We’re not up to making people feel bad about their ancestors . . . Being eight generations, I feel very connected to them and wouldn’t want [people] to be negative toward me,” she continued, not elaborating, as she would later, that she’d “resent it” if anyone asked her to bear responsibility for what a relative had done because “I’m not guilty of any of that,” and “nobody today is guilty of that,” and that while she was in favor of museums and Civil War memorials, she did not think the lynching needed a memorial, or a place in a museum, or a public reckoning involving names because “people would be very angry about it — I can feel it.
This despite the fact that no one here is seeking anything from anyone. Everyone who could be held legally or financially accountable for the lynching is long dead and all relevant statues of limitation have run. No one is suggesting actual consequences for anyone because such a thing would be impossible. All Johnson is looking for is a basic acknowledgment of history and even that is too much for some. It's ironic that, in an age when a certain sort of person finds it fashionable to profanely and giddily tell others than their actual, current feelings matter less than facts, some people’s feelings about their relatives’ complicity in a 93-old murder are so precious and fragile that they are effectively foreclosing any examination of a literal criminal atrocity.
We’re supposed to care about the feelings of the descendants of murderers, but imagine how this must make the black citizens of Wytheville feel. Imagine how the relatives of people who were murdered or who were put in fear of racial violence on a daily basis for decades and centuries on end feel to hear that it may make someone uncomfortable to be told that their great-grandfather was a murderer. As a white man who hasn’t known much in the way of adversity in life I can’t put myself in their shoes of course, but as someone who is both descended from a long-dead murderer and whose family was upended and, in many important ways, still suffers from the consequences of that violence, I can tell you that (a) the skeletons in your family's closet can't really hurt you; and (b) knowledge and understanding of a dark history can be beneficial to healing and improvement. In my family’s case that violence was an isolated and random act no one had to worry too much about after the fact. I can’t even begin to imagine how it would feel to be the target of centuries of systematic, state-sanctioned violence and be told “sorry, it would hurt some people’s feelings to talk about it.”
Not that such denial to confront past racism is limited to over-the-top violent acts like the lynching of Raymond Byrd.
Unapologetic racists, the sorts of which who may have, at an earlier time, lynched a black man, exist and will always exist, but those sorts are pretty easy to spot and pretty easy to deal with in modern times. The problem is that they are held up as the only example of actual racists in this country and everyone who falls short of the standard set by hood-wearing, cross-burning klansmen are implicitly absolved. The people in Wytheville are turning away from a shocking, violent act, but a bigger practical problem are the millions of people who simply do not understand the consequences of our far more common and run-of-the-mill racist past and/or refuse to reckon with them in any meaningful way. They likewise refuse to understand how much they themselves benefitted from it either directly or, because they are white, benefitted from it in comparison to people of color.
We refuse to appreciate that our family may have acquired some degree of current wealth because our parents and grandparents owned homes or property in which equity was built while people of color were prohibited from owning property for centuries (because they were property) and have been subjected to housing discrimination for the past 150 years, thereby impacting their financial prospects to this very day.
We laud the example and legacy of our fathers or grandfathers who may have moved around to take advantage of educational or professional opportunities that helped them, and thus us, move up in the world but refuse to acknowledge that such opportunities were almost totally foreclosed to people of color until very, very recently and that even now such opportunities are not offered equally.
We live in an era in which the consequence-free extrajudicial killing of black people occurs with disturbing regularity. Part of the reason such a state of affairs persists is because we simply refuse to see it as the logical and inevitable extension of such killings which took place in the past, which went unpunished then and go unexamined to this very day.
George Santayana famously said that those who cannot remember the past are condemned to repeat it. I would offer that those who refuse to remember the past are complicit when it does so.
The Mueller Report is finished and it has been given to the Attorney General. We now begin what I suspect will be a nasty, extended fight over whether and/or when it should be released to the public.
I'm struggling to think of a single reason why it should not be released, in full, to the public. While there may be some security concerns around the edges of the thing they can be dealt with easily via redaction of names and the like. All other objections to releasing it would seem to be political in nature.
Republicans will not want it released because it will, in all likelihood, serve to make some Republicans look bad. Either because they were involved in the underlying matters (a small number of them to be sure) or because they have said and done things in the past two years which will prove to be embarrassing or stupid in light of what the report has to say (a great many of them, particularly Members of Congress).
I'd like to say I'll be surprised when Republicans object to the report's release but, sadly, I will not be. These are people who argue, with a straight face, that it's good to make it hard for people to vote, after all. Fighting against transparency and sunlight won't trouble them a lick.
As for the substance: I've been far less caught up in the Mueller Report hype than most of my friends on the political left. While I think the investigation was and is important, the idea that Mueller would indict multiple figures in the administration, let alone anyone close to Trump personally, has always seemed like fantasy to me, both for legal and practical reasons (more on that below). Mueller is no avenging angel and possesses no magic bullets which will end the nightmare of the past two years and change. The only thing that will effectively deal with that are effective oversight and pushback from Congress, political action, and elections. Mueller ain't no Jesus gonna come from the sky, even if he found out something big.
Which is not to say that what's in the report is not important. There are many things Mueller has already uncovered for which a full explanation and accounting must be made and a lot of questions about Trump, his campaign and his administration which must be answered, whether or not any indictable criminal activity was found. A non-exhaustive list:
It should finally be noted that, even if Mueller has not sought any further indictments, that does not mean that he has not found potentially criminal conduct on the part of either Trump or high-ranking campaign or administrative officials. There is a well-established -- and well-founded -- hesitance on the part of prosecutors to seek criminal charges against a sitting president and a strong belief among legal scholars that doing so is impermissible under the law. Rather, the notion is that Congress, a co-equal branch of government, is the primary means of sanctioning criminal conduct on the part of the executive. As such, it quite possible that Mueller has uncovered acts which are, in fact, criminal, but which are not appropriate for indictment given the figures involved or, possibly, are simply not appropriate for indictment at this time.
More likely, it is possible that the facts and conclusions presented by Mueller constitute a basis for Congress to act in some way, shape or form, be it action taken directly against the administration or legislation aimed at ameliorating what has happened or preventing it from happening again. We are entitled to know what Congress knows regarding all of this, both because Congress is the surrogate for the people, and because we are entitled to know the basis on which Congress acts in our name and in our stead.
The Mueller Report, in its entirety, must be released. Anyone who stands against its full release -- anyone who stands for anything less than full and total transparency regarding the important effort which has been undertaken these past two years -- stands against democracy.
On Friday Larry Baer, the CEO of the San Francisco Giants, was caught on tape having a loud, public argument with his wife. In the video he tried to rip a cell phone out of her hands, which caused her to tumble off of her chair and to the ground as she screamed "help me!" Baer walked away and made no effort to help his wife or act in any way to suggest that he cared that he sent her down to the asphalt.
It was a disturbing scene and the lack of criminal charges and the couple's later joint statement that it was all just an embarrassing misunderstanding did nothing to make it better. Whether you or the authorities consider it a crime or not -- I think it could be classified as battery, even if I do not believe Baer will actually be charged -- you cannot say Baer's behavior was acceptable. If you saw that happening to your mother or sister or daughter or friend, you would not be blasé about it, charges or no charges. You would consider it abuse.
Yet, so many of my readers and people responding to my stories about it online are blasé about it, or worse. Sometimes far worse.
I've blocked dozens of men calling Baer's wife a "bitch" or worse, or claiming that she was "looking for attention." Despite clear video of the incident, several people have defaulted to the old stand-by, "hey, we don't have all the evidence" or "maybe there's more to the story here, don't jump to conclusions." This morning someone commented, saying, "[h]e grabbed for the phone. Perhaps his wife was talking loud on it and embarrassing him. So he appeared to have a negative passionate moment, not a planned one." I wonder what would happen if a black man or a poor man or -- heaven forbid, a woman -- upon being arrested for something, attempted to get out of trouble by saying they simply had "a negative passionate moment."
Over at my website we, unfortunately, have an upvote/downvote system for comments, allowing readers to agree or disagree with other readers. A fun thing is happening with those: anyone voicing criticism of Baer or condemnation of domestic violence is receiving tons of downvotes. Far, far more than comments on most articles ever get. I have deleted the misogynistic comments, but those generally defending Baer or condemning those who would criticize him are receiving upvotes, again, in far greater numbers than our site normally gets. I strongly suspect that the articles have been picked up by various men's rights forums -- which are a cesspool of misogyny as it is -- and that they are very sending traffic over to specifically upvote and downvote comments which conflict with their pro-abuse world view. It has happened before, to my site and to other sites.
I, like anyone with decent parents, teachers and other adults in his life, was taught growing up that violence against women was abhorrent and unacceptable. That it was the worst thing a man could do. When I was young I believed, naively, that most people were taught this too. As I got older I lost my delusions on that score. If I held on to those delusions at all into adulthood they were lost after a friend got jury duty on a domestic violence case in the late 1990s. The defendant threw a phone -- an old dial-up desk phone that had some weight to it -- at his wife, hitting her and splitting her head open. The trial resulted in a hung jury. One of the jurors who would not vote to convict the guy said in the jury room, "I'm not gonna send a guy to jail for hitting his wife with no phone." This, by definition, was a man who passed a voir dire that, theoretically, was aimed at weeding out people with preconceived views on the matter at hand.
Evidence doesn't matter to some people. Even when abuse is caught on video it is meaningless to them. The "hey, people are innocent until proven guilty" and "let's not rush to judgment" responses in these instances are, usually, a dodge and, since we're not the cops and are not on a jury, they're also irrelevant.
It's simply the case that, as most women know but most men, I suspect, don't quite appreciate, there are a lot of men out there, more than you think, who simply do not think it's wrong to abuse women. Who think it's far worse, in fact, for a man to be held accountable for abusive behavior than it is for him to engage in abusive behavior to begin with.
It makes me sad. It breaks my heart. But it's the truth.
I just read the statement from Micheal Cohen prefacing his testimony before Congress.
Cohen is simultaneously believable about which he speaks yet is still delusional about his role and his own character. What he said is simultaneously revealing by virtue of the fact that someone is actually, finally, giving voice to those words in an official setting yet obvious in that nothing he says is at all surprising to anyone who has paid even a bit of attention. Overall, his statement speaks to how villains believe themselves to be the heroes of their own stories. His statement will not change Trump supporters' views, because they are lost causes who are even more deluded than Cohen is.
Trump was and is unfit. He was and is a lying, crooked, racist imbecile. This is not news nor should it be news to anyone.
Neither this testimony nor any magic from Robert Mueller is going save us from that because so many people want it or, at the very least don't care. Trump once famously said that he could shoot someone in the middle of the street with impunity. I don't know about that, but I am confident that he could be found to have committed the highest of crimes or misdemeanors and the United States Congress would do nothing to stop him or punish him. That is simply where we are as a country right now.
The only way through it is to elect someone who is not him and to begin the long and hard work of fixing all that has been broken. Unfortunately a whole lot of people are going to actively or passively prevent that from happening for many different reasons.
At least the ones who actually love Trump will be straightforward about it. A lot of other people who claim they hate Trump will nonetheless help his cause because they hate other things and other people more. They hate Democrats or they hate progressive policies or they hate the media or what have you and, while giving lip service to their disdain for Trump and all he represents, they get something out of him that they fear they would not get from someone else. They want to let corporations poison the water, let banks put poor people in debtors' prisons and ensure that the judiciary is in their pocket as they do it, and Trump is in the best position to do make that happen. These people, too, believe themselves to be the heroes of their own stories.
The Cohen statement is a good read. But if it takes his words for you to believe that Donald Trump is unfit and deserving of removal from office -- that, in Cohen's words, Trump is a "racist, a conman and a cheat," -- I'm not sure what planet you've been living on, because it's been manifest for years and years.
"Green New Deal backers say they want more high-speed trains to make airline travel less necessary, and more electric cars and charging stations. But experts warn that changing the existing fleet of cars in the U.S. would be an extraordinary effort." -- NPR tweet, February 9, 2019
"Colonists say they want to throw off the yoke of royal tyranny and form a new nation founded on the principles of self-evident truths about equality and liberty. But experts warn that winning a revolution against England would be an extraordinary effort." -- 1776
"Abolitionists say they want to end slavery, America's original sin and an atrocity of untold depths and darkness. But experts warn that changing the economic model of southern agriculture would be an extraordinary effort." -- 1852
"New Deal backers say they want to rescue the nation from economic catastrophe and take steps to both prevent another one and mitigate the effects of another one should it occur. But experts warn that doing literally anything would be an extraordinary effort." -- 1932
"World War II backers say they want to stop the march of fascist tyranny that promises untold death and destruction and imperils the very notion of freedom and democracy. But experts warn that defeating Germany and Japan would be an extraordinary effort." -- 1941
"Civil Rights activists say they want to end a century of Jim Crow laws and extend Constitutional protections to everyone, not just whites. But experts warn that asking people not to discriminate and actually abide by the law would be an extraordinary effort." -- 1954
"President Kennedy says he wants to put a man on the moon in an effort to inspire a nation, prove its superiority to communist dictatorships and to open up a new frontier of scientific discovery and human imagination. But experts warn that landing a man on the moon would be an extraordinary effort." -- 1961
Doing anything that truly matters takes extraordinary effort. Aid in that effort. Help direct that effort if you genuinely feel that it is misguided in some important way. But don't sit the hell back and whine about doing something simply because it takes effort.
Last year I wrote a long true crime story that hit close to home. Like, really close to home: my great-great grandmother killed my great-great grandfather with an axe one snowy December morning in Detroit back in 1910. You'll be happy to know that she did this after my great-grandfather was born, thus allowing me to exist. Thanks for holding off on that, Nellie. I owe you one.
I had published all of this as a short ebook on Amazon and many of you bought it. Thanks for that! It's been out a while now, so I figured it was worth publishing the whole thing for free here, so here it is, in all of its dysfunctional family glory. Feel free to share it with family members who annoy you. It will really creep them out and, I suspect, treat you more kindly in the future.
If you paid $2.99 for the ebook and feel ripped off now that it's free, well, sorry. I'll make you a deal though: if someone important and powerful reads it and decides to option it for a Netflix movie or something fun like that, I'll invite you to the screening and/or buy you a beer at some point.
Last week I wrote a rundown of some of the many, many lies Brett Kavanaugh told under oath during his testimony before the Senate Judiciary Committee. An NBC News report from last night reveals that he may very well have told another one. A pretty damn serious one, in fact.
The story surrounds the claims of Kavanaugh's college classmate, Deborah Ramirez, who says that Kavanaugh exposed himself to her. Her claims were first made public in an article in The New Yorker in late September. Kavanaugh claimed under oath that the first time he heard of her claims was in the New Yorker story, which he suggested blindsided him and which he characterized as "an orchestrated hit to take me out.”
The NBC story claims, however, that based on text messages exchanged between Kavanaugh, his nomination/legal team and old colleges friends, Kavanaugh and/or his surrogates were working behind the scenes to head off Ramirez's allegations at least two months before the New Yorker story broke:
Further, the texts show Kavanaugh may need to be questioned about how far back he anticipated that Ramirez would air allegations against him. Berchem says in her memo that Kavanaugh “and/or” his friends “may have initiated an anticipatory narrative” as early as July to “conceal or discredit” Ramirez.
If he and/or those working with him were trying to get people's stories straight about Ramirez's allegations in July it was, quite simply, a lie for him to say last week that the first he heard about those allegations was in the New Yorker story. A lie aimed at hiding the fact that he knew of a serious allegation beforehand and suggesting that an effort to suppress the allegation -- to craft "an anticipatory narrative" -- was undertaken. This would stand as a lie, by the way, irrespective of the truth of Ramirez's claims.
If the text message bear this out -- and all it would require would be for them to show that, at some point before the New Yorker story, Kavanaugh and/or his team were texting people talking about Ramirez's allegations with at least some degree of specificity -- there is no defense for his testimony last week. It will stand as perjury and it should be disqualifying. More than that, it's the sort of thing that, in almost any other circumstance, would cause his state bar to investigate him with the eye toward a license suspension or disbarment.
Yet, it still seems, Republicans will attempt to ram him through and onto the Supreme Court.
As an attorney with 11 years of trial experience, I found Christine Ford's testimony about her alleged attempted rape by Brett Kavanaugh to be convincing and compelling. Any lawyer with even half that experience would, if they were not being nakedly partisan, agree.
Contrary to what random people on the Internet will tell you, this is not a matter of everyone's opinion being of fair and equal weight. Experienced legal practitioners know that there are basic criteria for what makes a witness believable. Ford met virtually all of them. If a lawyer tells you otherwise, they are lying for partisan reasons.
I'm less interested this morning in her credibility, however, and more interested in the credibility of Brett Kavanaugh. Based on yesterday's hearing that, likewise, should be pretty uncontroversial. He's a liar. He lied repeatedly about things big and small, both yesterday and while under oath several years ago. To wit:
Some of these matters may seem, in isolation, to be trivial. In context, however, they are anything but. The sort of person Brett Kavanaugh was as a high school student has direct bearing on the very serious and heinous act of which he is being accused and his lies about such matters -- his drinking, his attitude toward and treatment of women -- have a direct bearing on his credibility. That he would blatantly lie about such matters is damning and utterly destroys the credibility of his denials. While there is not enough evidence to bring criminal sexual assault charges against Kavanaugh, there is plenty of reason to believe he lied repeatedly in an effort to get out from under the accusations, suggesting that he did, in fact, do what Christine Ford said he did.
Even short of that, however, his lies are disqualifying in and of themselves. He's a lawyer. He's a judge. He's poised to become one of the nine most powerful jurists in the nation. A single lie about even a trivial matter under oath would place any attorney's license in jeopardy and say damning things about his credibility and ethics as an attorney. Multiple lies from a man who wishes to serve on the Supreme Court are inexcusable and would, at any other time in out nation's history, ensure the failure of his nomination.
Yet Kavanaugh will likely be confirmed. He will be confirmed because Republicans do not care that he lied. They do not care about anything other than a political victory and control of the Supreme Court and they will countenance perjury and, it seems very likely, attempted rape, in order to get it.
I defy any person -- especially any lawyer -- to make a case for Brett Kavanaugh's credibility and fitness to be a Supreme Court justice in light of his lies and, yes, his perjury. I defy them to do it without reference to broad political talking points, ends-justify-the-means rationalizations and tu quoque reasoning. I do not think it can be done. At least not if one is being intellectually honest. Even the Republicans with whom I engage on social media and who, normally, will make an effort to argue that white is black until the position is no longer tenable are not even making the effort, likely because they know they cannot do so.
You will likely get your Supreme Court justice, Republicans. But you are getting it at the price of your soul. And you are certainly getting it at the cost of my respect for you. Now and forever going forward.
Most people will watch the Brett Kavanaugh hearing today in order to see whether Christine Ford or Kavanaugh is more believable as they testify about the alleged sexual assault that has led us here. As they weigh the witnesses' credibility, they should remember that they need not rely solely on the "he said, she said" aspects of all of this.
Brett Kavanaugh's boyhood friend, Mark Judge, was named by Christine Ford as an eye-witness to the alleged sexual assault. If what Kavanaugh and all of his supporters says is true, and that it did not happen, Mark Judge should be able to DESTROY Christine Ford's testimony, corroborate Kavanaugh's testimony and end this definitively. He should be able to say "yes, I read what Dr. Ford said about this, but it is simply untrue. This never happened." It would constitute at least some -- perhaps a lot of -- corroboration for his denial.
Instead, Judge literally went into hiding and the GOP is refusing to subpoena him.
This is a farce. it is an instructive and illuminating farce, but the outcome is preordained. Republican Senators will listen to Christine Ford today, but they will not hesitate to confirm Brett Kavanaugh because they do not think that backing an attempted rapist is as bad as not getting their first choice confirmed to the Supreme Court before Election Day.
On Saturday the University of North Carolina football team will host the Pitt Panthers in their home opener, kicking off the Tar Heels’ 92nd season in Kenan Memorial Stadium in Chapel Hill. Almost none of the 40,000+ fans who will show up have any idea who the stadium is named after, and even those who think they do probably have it wrong.
They've likely heard the name Kenan, as it is an extraordinarily prominent name in and around UNC. One of the university’s founders was a Kenan. The business school is named after a Kenan as is a charitable trust that endows dozens of professorships and distributes numerous grants benefitting literacy, the arts, science, technology, and secondary school education. A Kenan is currently on the Board of Trustees for the UNC School of the Arts.
Almost all things Kenan at UNC are named after chemist, industrialist and developer William Rand Kenan Jr., an 1894 UNC graduate who, after teaming up with his brother-in-law, the oil man Henry Flagler, built railroads and made a fortune developing Miami and the Florida coast. When he died in 1965 he bequeathed most of his $95 million fortune to his alma mater. Today the trust that bears his name is worth over $300 million.
The football stadium is not named after William Rand Kenan Jr., however. Rather, at his request, and following a generous donation, it was named after his parents, William Rand Kenan Sr. and Mary Hargrave Kenan. It is they, according to a plaque affixed to a freestanding monument inside the stadium, who Kenan Memorial Stadium is intended to memorialize and continues to memorialize to this day.
Most fans entering Kenan Stadium probably don’t pay much attention to the plaque and, as a result, don’t know the first thing about William Rand Kenan Sr. Even if they did read it, though, they would not learn the most notable thing about him.
William Rand Kenan Sr. was the commander of a white supremacist paramilitary force which massacred scores of black residents of Wilmington, North Carolina on a single, bloody day in 1898.
For nearly a century the events which took place in Wilmington on November 10, 1898 were known as “The Wilmington Race Riot.” That very name, however, was a lie intended to obscure what really happened.
Long portrayed as a violent uprising of black instigators put down by heroic and noble white citizens fighting for law and order, it was, in fact, a massacre. It was simultaneously a coup d’etat in which a white militia, led by a former Confederate officer and a white supremacist named Alfred Moore Waddell, killed black residents in the streets and in their homes, chased even more out of town, burned black-owned businesses to the ground and overthrew the local government, led by blacks and their white Republican allies in a coalition born of the briefly-ascendent Fusion Movement, which had just been legitimately elected.
History has tended to portray the massacre as spontaneous. It was anything but. It was preceded by months of racial and political tensions, stoked by red shirt-wearing white supremacist Democrats who were aggrieved that in Wilmington, then North Carolina’s largest city, a Fusion government sought to protect the gains freed blacks had earned during Reconstruction. On election day in 1898 the red shirts attempted to steal ballots and drive black voters away from polling places. Those efforts failed and the black-Republican coalition held power.
That night a group of over 450 white men met at the courthouse and signed a so-called “White Declaration of Independence” which specifically called for the repeal of black voting rights and the banishment of black political and business leaders from the town. The following morning signatories to the Declaration burned the offices of the Wilmington Daily Record, — the town’s black-owned newspaper — to the ground and threatened its publisher with lynching. The massacre, planned out in advance and undertaken with deliberation, had begun.
History has likewise portrayed the violence in Wilmington that day as being carried out by an unruly mob. This is also a lie. The massacre was an organized paramilitary action in which the Wilmington Light Infantry, a state militia unit which had just returned from duty in the Spanish–American War, spread out over the city, taking it over street by street, killing black citizens in the process.
The most intimidating — and the most deadly — component of the Wilmington Light Infantry was was its machine gun squad, which commanded a rapid-firing Colt gun mounted on a horse-drawn wagon. The gun, capable of firing 420 .23 caliber rounds a minute, was not property of the United States Army or the state militia. Rather, it was purchased by local businessmen who, according to contemporary accounts, believed that the gun would “intimidate into quietude” those who saw the weapon and “overawe Negroes.” The machine gun squad was likewise itself not a military force. It was led by a Civil War veteran and local businessmen named William Rand Kenan Sr., with other local business owners under his command.
The bloodshed began when foot soldiers shot and killed blacks who had gathered on the street following the burning of the Daily Record’s offices. The massacre grew much deadlier when Kenan’s machine gun wagon crossed the Fourth Street Bridge into the predominantly black part of Wilmington known as Brooklyn. Its first fusillade came in response to what witnesses claimed to be sniper fire, though no sniper was ever found. According to eye-witnesses, the gun’s volley killed 25 blacks in a matter of seconds. Later, as Kenan’s machine gun squad proceeded past an area known as Manhattan Park, it was witnessed firing into a house where three black residents were killed. The gun was later used to threaten black churches into opening their doors to be searched for weapons whites believed blacks to be stockpiling and individuals white leaders deemed to be dangerous or subversive. No weapons were found but many black residents were marched out of hiding. Some were thrown in jail. Some were never seen again.
As the morning wore on, Kenan’s forces and other units of the Wilmington Light Infantry conducted house-to-house searches, intimidating residences into compliance, arresting blacks by the dozens and shooting those who gave even the slightest hint that they might resist. Some blacks who were specifically identified as influential in the community were hunted down and killed. As shots rang out, hundreds of black men, women and children fled town, some permanently, some to take shelter in nearby cemeteries and swamps until the violence subsided. By sundown, buildings in Wilmington’s black neighborhoods were pockmarked with bullet holes and anywhere from 60 to as many as 300 blacks had been killed. The exact number is lost to history due to white leaders’ hasty burial of bodies in mass graves and due to black witnesses either having fled town or having been intimidated into silence.
The next morning white leaders, with the backing of the Wilmington Light Infantry, forced the Republican Mayor, the board of aldermen, and the police chief to resign at gunpoint after which they and black leaders which had not been killed or who had not fled were marched to the train station and forced to leave the state under armed guard. That same day Alfred Moore Waddell — the white supremacist leader who orchestrated the events which led to the massacre — was named mayor, an office he would hold until 1905. The coup d’etat completed.
Within a year of the massacre the North Carolina legislature — determined to prevent blacks from holding political power like they did for a time in Wilmington — passed a new constitution which made it close to impossible for blacks to register to vote and imposed poll taxes and literacy tests that effectively disfranchised black voters completely. Nearly every other southern state would model laws on these North Carolina statutes. The “Solid South” of the Jim Crow era was secured and would remain in place, officially, until the passage of the Civil Rights Act in 1964. Unofficially, efforts to discourage blacks from voting continue to this day.
William Rand Kenan Sr. was hailed as a hero for his role in the massacre. The white-owned Wilmington Messenger newspaper lauded the Wilmington Light Infantry and Kenan personally, writing “[i]n the Revolutionary War, in the Civil War and in this race war, a Kenan was the bravest of the brave.” A few weeks after the massacre it was reported that Kenan held a massive barbecue for all of those who participated, after which the assembled men gave Kenan a vote of thanks for his service in the massacre. In February 1903 Kenan was named to the University of North Carolina's Board of Trustees. He died two months later.
For the next several decades the Wilmington Massacre was invariably branded a "riot," "insurrection," "rebellion," "revolution," or "conflict," necessitated by an unlawful uprising of black aggressors, with the violence of it all dramatically downplayed, distorted or cast as unavoidable. A typical example of this can be seen in Incidents by the Way, the 1958 memoir of William Rand Kenan Jr., the UNC benefactor, who wrote of his father’s actions thusly:
“As a small boy I was much impressed with the following: There was a riot of colored men in Wilmington and my father organized a company of men with all kinds of rifles together with a riot gun on a wagon and they cleaned up the riot very quickly, although they were compelled to kill several persons. My father rode the wagon and directed the operation.”
William Rand Kenan Jr. was, in fact, 26 years-old at the time and was working as a chemist for Union Carbide. He was almost certainly well-aware of the circumstances of the massacre and likely distorted the timeline of it, casting himself, erroneously, as a “small boy,” in order to distance himself and his family from its horrors as time passed.
It is highly unlikely that any of the thousands of football fans who come to Kenan Stadium each fall or any of the dozens of young men who play for the Tar Heels — a great many of whom are black — are aware of the infamy of the stadium’s namesake. Indeed, even those most familiar with the university and its connection to the Kenans know little if anything about it.
“The Kenans are an enormously generous family of benefactors to the University of North Carolina. Everybody knows that,” UNC history professor Harry Watson told me when I interviewed him recently. “The average undergraduate would say ‘oh, yeah, the Kenans, they’re a pretty important family who have given us a lot of money’ but the biographical details are not likely well known as even that,” Watson said. “Kenan Sr.’s role in the violence of 1898 is not widely known at all.”
“There are probably a couple of people on campus who know,” said UNC history Professor William Sturkey, who specializes in the history of Jim Crow and the New South. “I think a lot of people would be quite shocked. It’s just something that’s been buried and forgotten.”
It’s not the first thing that has been buried and forgotten about the history of the Kenans.
A plaque on Kenan Memorial Stadium refers to the Kenan family's wealth as coming from “chemicals, power, railroads and hotels.” That is true so far as William Rand Kenan Jr.’s adult fortune was concerned, but the Kenans were already wealthy thanks to plantation slavery. Indeed, according to an 1850 slave census, the Kenan family owned 49 people, including 23 people aged 10 or under. This would be the household in which William Rand Kenan Sr., who manned the gun in Wilmington and for whom the stadium was named, was raised.
Last February Sturkey, a member of the school’s Faculty Athletics Committee, introduced a motion recommending that the athletic department take steps to place a new plaque on the stadium to note the family’s slaveholding past. His intention was not to cast the Kenans in a bad light — he did not know about Kenan Sr.’s role in Wilmington at the time — nor was it his intention, as so many people are accused of doing when such matters arise, to “erase history.” To the contrary, Sturkey said, it was the history of the slaves owned by the Kenans that was erased. As a historian, Sturkey said, he just wanted the full story to be told.
“[Slaves’] presence and their lives were omitted. And not just omitted, but intentionally omitted.” Sturkey said. He said that, via his motion, he was suggesting that the Faculty Athletics Committee ask the athletic department to “take steps to recognize the existence of these people whose lives were so crucial to compiling the wealth which built the university . . . it was about simply telling the truth and not misleading people.”
Sturkey’s motion was unanimously passed but it has not been acted upon and the athletic department has given no reason why it has not done so. Not that the athletic department would be the first department which has chosen to ignore the slaveholding history of the Kenans. Over at the Kenan-Flagler Business school website there there appears a timeline of the Kenan family's history. It conspicuously jumps from 1793 to the 1880s, with no mention whatsoever of what the Kenan family was doing, and how it was making its money, during the intervening years.
“Kenan is a name that’s all over our campus, but in terms of how we’ve approached history, we’ve let the greatest benefactors tell their own history,” Sturkey said. “But by doing that, of course, we’ve allowed them to have the complete say in what that history is.”
Based on recent events at UNC, it would appear that, if the Kenans and the university continue to insist upon complete say in how history is told, they will do so at their peril.
Like so many other places in the south, North Carolina is no stranger to the ongoing controversy surrounding memorials and monuments of the Confederate and Jim Crow eras. It is unique, however, in not only its opposition to doing much if anything about them, but in its affirmative protection of such monuments.
For 105 years, a statue called “Silent Sam” sat on a prominent quad on UNC’s campus, facing the main street which passes the university. While ostensibly intended to commemorate the Civil War and its fallen soldiers, Silent Sam, like so many other Confederate monuments erected in the late 19th and early 20th century, was in fact a monument to the Jim Crow Era. If there was any doubt of this, one need only read the speech given by industrialist, philanthropist, and white supremacist Julian Carr at Silent Sam’s dedication ceremony in 1913.
Carr, who advocated for taking voting rights away from blacks and who referred to the Wilmington Massacre as “a grand and glorious event” after it occurred, did not mince words on the afternoon Silent Sam was dedicated. He talked openly, and with no small amount of pride, about how Confederate soldiers saved “the very life of the Anglo Saxon race in the South,” adding, “to-day, as a consequence the purest strain of the Anglo Saxon is to be found in the 13 Southern States — Praise God.” He added that, in the days after the end of the Civil War he had, on the very spot where the statue now stood, “horse-whipped” a “negro wench” for speaking disrespectfully to a white woman. Given how it was spoken of at its very dedication, there is no question that the statue was not intended to memorialize fallen soldiers but, instead, to stand as a monument to white supremacy.
Silent Sam had been a source of controversy for years, but in the wake of 2017’s Unite the Right march in Charlottesville which, among other things, cast more light on Confederate and Jim Crow-era monuments, protests had increased significantly. The university listened to protesters’ arguments but claimed it could do nothing about Silent Sam because its hands were legally tied.
And, to a very large degree, they were. By both a university bylaw adopted in 2015 and by a state law passed in 2015 which prohibit the renaming or buildings and removal or relocation of monuments under all but the most narrow of circumstances. Given the timing of the passage of these laws and the events which inspired their adoption, they were, without question, aimed at heading off protests of monuments to the Confederacy and Jim Crow before they began. Absent those laws, the sign makers would be pretty busy: UNC has no fewer than 30 buildings named after figures tied to white supremacy.
Not that those laws are the only thing motivating UNC officials and donors. Some seem quite eager to protect monuments to the Confederacy and Jim Crow on their own terms.
Last month a series of emails were leaked and published in which one member of the UNC Board of Trustees called for cameras with night vision to be installed around Silent Sam in order to protect it and called protesters “criminals” and “entitled wimps” who should be arrested as a deterrence measure. In another email the university’s Vice Chancellor referred to university leadership’s interest in “preserving a piece of our history,” and defending the statue from “outside parties” who may protest it. Wealthy donors threatened to withhold six-figure contributions to UNC if Silent Sam was removed, with one calling protestors “spoiled intellectuals.” Whether it was because of that direct pressure and the interests of UNC officials in protecting the statue, or whether it was because university bylaws and the state law prevented them from taking action, in early August the UNC Board of Governors announced it had no plans to remove Silent Sam.
If UNC officials thought that would be the end of the matter, they were sorely mistaken. In the wake of the decision to take no action, protests intensified. On the evening of August 20 — the night before the fall semester began — hundreds of protesters gathered around the statue, threw ropes around it and, in less than ten seconds, brought Silent Sam crashing to the ground. What was left of Silent Sam was taken to a university warehouse in the back of a dump truck. His fate is as of yet unknown, but at the moment the University seems intent on re-erecting the Jim Crow relic.
While a statue can be toppled, a 60,000-seat football stadium cannot be razed by a few hundred protesters. Unlike what has happened with troublesomely-named buildings and monuments at Duke University, the University of California at Berkeley and what will soon happen at Stanford University, it cannot be removed or renamed, at least without the sort of political and legal action which no one in a position to do so seems at all willing to undertake. Which leaves UNC -- which did not return a call or email seeking comment -- in a precarious position. Indeed, the university would seem to have only two choices.
The first choice would be to acknowledge the role of William Rand Kenan Sr. in the Wilmington Massacre and to find a way, via additional plaques or interpretive materials, to tell the full history of that dark chapter of the Kenan family. In so doing it might, as Professor Sturkey suggested, begin to recognize the totality of the history upon which UNC was built and begin to remember those who have been intentionally erased from that history. Given the Silent Sam pushback and based on how even a modest motion to amend the misleading historical plaque about the Kenan family at the stadium was already ignored, it seems unlikely that the university would do such a thing.
Which would leave the only alternative: to do nothing. To continue to bury the history of its stadium’s namesake and his role in one of the darkest atrocities of the Jim Crow era, thereby allowing the largest and most prominent building on campus to memorialize a man who should, by all rights, stand in infamy.
Will the university do nothing? Better yet, will the people who toppled Silent Sam and those who supported them stand idly by if it does?
Special thanks to LeRae Umfleet, author of A Day of Blood: The 1898 Wilmington Race Riot (2009), published by the North Carolina Office of Archives and History, which served as an important source for this article
Judge Brett Kavanaugh is nearing confirmation to become the next Justice of the Supreme Court of the United States. As you likely know by now, he has also been accused of sexual assault when he was in high school. The story of his accuser, Christine Blasey Ford, can be read in The Washington Post.
The short version: during a drunken high school party, Kavanaugh allegedly caught her in a room, held her down and attempted to take her clothes off in what was likely an effort to have sex with her. An effort which would've been rape, because Blasey Ford did not consent. Indeed, she claims that she tried to fight off Kavanaugh and tried to scream, but that he placed his hand over her mouth to prevent her from doing so. Thankfully, however, she managed to escape in part due to Kavanaugh's drunken state and the drunken state of one of his friends who was also in the room. The incident has traumatized Blasey Ford for years, she says, and she suffered from post traumatic stress disorder. Kavanaugh and the other man who was allegedly in the room at the time deny the accusations completely.
Now that Blasey Ford's story is out, you will hear a few things, over and over again, from Republicans and those who want him to be confirmed:
Those things are all true. But they also don't matter when a lawyer or a judge is involved. The bar is nowhere near that low.
All lawyers, before being admitted to the bar, are subject to a test of "character and fitness." This involves background checks and interviews. If you do not pass your "character and fitness" test, you are not admitted to the practice of law.
The thing about the character and fitness test is that it specifically deals with stuff that happened a long time ago, before you were a lawyer. It often deals with stuff that never resulted in criminal charges. It does not matter if you denied, because the test is your candor. Indeed, someone who has been arrested and has gone to jail and has done their time, has atoned and is frank about it all has a BETTER chance of being admitted to the bar than someone who wasn't charged with anything but offers sketchy denials when asked about a given incident that had otherwise gone un-investigated.
(It's probably also worth noting that a history of financial irresponsibility is a relevant subject of inquiry and that getting into non-criminal financial trouble in such a way that raises questions about your judgment can also keep you from getting your law license. That could also be relevant for Kavanaugh too, but we'll let that go for the time being)
The key to all of this is that the test -- contrary to what Republicans will say for the next few days -- is not "his word against hers" or how long ago it was or whether there was anything criminal that arose from it. It's about his character. It's about his candor. It's about his integrity.
That's a high bar, not a low one. And it's that high a bar SIMPLY TO GET YOUR LAW LICENSE. Now think about how high that bar should be to get, literally, the highest possible legal job in existence: Justice of the Supreme Court of the United States of America.
Non-lawyers may think it's silly or overstating things, but lawyers know: if bar examiner had been made aware of these allegations when Kavanaugh graduated law school, he would have, at the very least, been subject to greater investigation on the matter. Depending on how he answered those questions -- if he was evasive or incomplete in his answers, even if he stuck to his denial -- he may have had his license withheld. People have had that happen to them for far less.
Against that backdrop, it is not at partisan to say that the allegations against Kavanaugh should, at the very least, result in far more inquiry and questioning of him. It should also go without saying that, if he sticks to what are starting to become less-than-satisfying or less-than-illuminating denials, he shouldn't be confirmed.
It's not partisan to say this because the standards to which all lawyers are held are directly invoked here. It is a matter for his chosen profession which, the reputation of lawyers notwithstanding, demands high moral and ethical character of its practitioners.
To become the next Justice of the Supreme Court, Kavanaugh should be obligated to show that he has cleared that considerable bar.
Do you like bourbon? Then I have a story for you.
Some of you may remember The Great Pappy Van Winkle Heist from back in 2013. Hundreds of bottles of the most expensive, most highly sought-after bourbon known to man, Pappy Van Winkle was reported stolen. Coming as it did amidst an unprecedented boom in the popularity of bourbon, it made national news. International news even.
In 2015, Franklin County, Kentucky Sheriff Pat Melton claimed to crack the case. A criminal syndicate was behind it, he said. Racketeering! Guns! Drugs! Serious, serious business. Over a half dozen arrested. A man named Toby Curtsinger the alleged kingpin. The assailants faced decades in prison under state RICO laws. It was a major, major deal and, once again, made news around the globe.
And then, three years later, it was no longer big news at all. It wasn't even all that big of a crime.
One person had charges dropped against them. Everyone else pleaded guilty, with all but one serving no jail time whatsoever. The alleged kingpin, Toby Curtsinger, was sentenced to 15 years. He served 30 days and was released on shock probation just this past weekend.
What made the case turn into almost nothing, with almost no jail time? The fact that there really was no Pappy Van Winkle Heist at all. At least not as it was portrayed.
I am the first and so far the only person I know of to speak to Toby Curtsinger about the case on the record. He invited me to Frankfort to interview him back in January. He told me everything. The reality is far more interesting than the coverage, even if it's nowhere close to being as sexy. I did a short writeup of it for it for Bloomberg-Business Week, which they illustrated into a fun little cartoony bit.
The short version: people in distilleries have been stealing bourbon forever. People have been stealing Pappy for years too. No one really paid it much mind. The alleged Heist was mostly a function of an overzealous employee noticing the inventory being off by 200 bottles and calling the police because he was worried he'd get in trouble. Note: the inventory was always off, usually by more than 200 bottles, and there is almost no chance anyone would've gotten in trouble for it, let alone noticed it. Buffalo Trace would almost certainly have done what they always did in such instances: written the missing bottles off as "breakage." Once the police were called, however, it was a big deal and it all spiraled from there.
In reality, the "Heist" was a snapshot in time, made possible by antiquated security and quality control at the Buffalo Trace Distillery, not uncommon at most distilleries until relatively recently. If not for a local sheriff (since voted out of office) trying to make himself look good and the Buffalo Trace Distillery realizing, after the fact, that it was the best free advertising Pappy Van Winkle ever got, none of this would've made even local news. In the end, of course, this was also all made possible by a crazy cocktail culture-fueled bourbon bubble characterized by marks paying thousands for a bottle of wheated bourbon that, 20 years ago, was being sold in novelty, collectable crocks with cartoon hillbillies on it. That sort of dynamic tends to incentivize a black market and tends to help pedestrian stories make the headlines.
Oh, and despite being portrayed as the "Pappy Van Winkle Bandit" none of the charges against Toby Curtsinger actually involved Pappy Van Winkle. He was popped for possessing five barrels of stolen Wild Turkey. It truly was the Pappy Van Winkle Heist that wasn't.
Finally: I actually did a much, much longer and in-depth writeup of all of this that, for various reasons, didn't work for Bloomberg, but I'm happy they ran with this at least. I may be writing up the longer version someplace, even if I only end up putting it on this blog.
With very few exceptions -- very notable exceptions, yes, which are not to be diminished but which skew more recently in our memory -- the Supreme Court has, historically, stood more often against progress than for it. We have been fortunate that that has not been the case in many important instances, but it is a matter of simple legal and historical fact that the court has lagged behind the political process in delivering justice rather than lead it.
The Court never ruled against slavery, did not deliver women the right to vote and took nearly a century to even begin to rule against Jim Crow. Even in instances where a single Supreme Court case stands paramount in the vindication of rights, such cases were only decided after years of people pushing our nation to get there, hard, in the social and political sphere. The Court often carries the ball over the goal line, but it's the people who marched it down the field.
This is not to say that we should not be worried about the Court's hard shift to the right. There will be considerable damage done to the course of human progress as a result of it in both the short term and long term. It is undeniably the case, however, that what the Court does will not be the final word.
It will not be the final word if people continue to fight, politically and socially, for justice and progress. Not if we push back against this madness by every means necessary, do whatever can be done to advance the cause of humanity and to beat back the cause of revanchism, nihilism and just plain evil.
Be sad today. Then get pissed. Then get to work. People who have faced far harder times than us have dealt with a society far less inclined to listen to their voices and far more inclined to do them violence as a means of silencing them. Yet they were not deterred. They did not wallow in defeatism. They kept fighting. And they won. Do them proud by doing the same.
Justice Kennedy is retiring, and he's going to be replaced by a much younger, more conservative justice who will do a great deal of damage in the very long time he serves on the bench. There's no way to sugarcoat that. Not at all. I will, however, make a few observations that you can give however much weight you'd like:
1. Despite Kennedy's past votes preserving victory in liberal causes, he has never been a sure thing, and each time there was much reason to believe he'd go one way before he went another. In light of that -- and in light of his track record in recent terms -- I had little faith that if, say, a Roe v. Wade challenge game up again that he'd vote to preserve abortion rights and I suspect he'd break right on host of other issues. Yes, it's bad that he's leaving and worse that we have Donald Trump nominating his replacement, but let's not pretend we're losing a liberal light of the judiciary, especially given that, five hours ago, he helped end organized labor as we know it in the Janus case.
2. A lot of people are saying the open Supreme Court seat will motivate Republican voters for the midterms this fall. I think that's overstated and possibly plain wrong. There are a lot of GOP voters who are strongly motivated by packing the courts with conservative judges, but those are also the sorts of GOP voters who vote in every election anyway. In this they're akin to that lady you know who works at the library, drives a Subaru, carries the NPR tote bag and can tell you the name of everyone on the ballot, right down to the third party candidate for that open school board seat three months before the general. Just as she's gonna be there voting for Democrats every damn time, the folks who get off on stripping people of their rights via the judicial system are already quite motivated, thank you very much. They're a big reason we're in the current mess.
3. While I have learned by now that there is nothing dumber, less-strategically-inclined and less effective than a Democratic political campaign, I suspect that the battle over the Supreme Court seat -- which Republicans will win, by the way, 100% -- could serve to help motivate Democratic voters who may not have otherwise come to the polls this November. This is especially the case if the seat is still open come November, but even if it is not, the sort of rhetoric with which Democrats should rightfully fill the air for the next couple of months over all of this should be the sort of things that motivate voters, especially young, normally less-than-fully engaged ones. People will vote if they think their very values and possibly even their very way of life is on the line. It very much is for the left. It is not for the right.
This is just my kneejerk reaction, mere minutes after Kennedy's announcement. Maybe I'm wrong, but I'd ask you: please, let's not be defeatist. There are elections to win this fall.
Another mass killing. Another round of politicians offering "thoughts and prayers," but acting as if nothing else can be or should be done. It doesn't have to be this way.
When people suggest measures to address gun violence, the response is, invariably, "that wouldn't eliminate these massacres!" As if there is no middle ground between totally eliminating all bad things and doing absolutely nothing. We don't think this way about automobile or airplane crashes. We don't think about medical problems this way. That people revert to such an all-or-nothing response when it comes to guns is purely a function of their unwillingness to do anything, not the inefficacy of taking action.
Indeed, there are several things which could be done to reduce the probability of mass shootings happening again or, at the very least, making them less common and, when they do occur, less deadly.
Unlike some people on the left who talk about gun regulations, I do appreciate that the Second Amendment exists and I appreciate that it limits much of what can be done to address gun violence. The Second Amendment does not, however, foreclose action. Indeed, the landmark Second Amendment case, District of Columbia v. Heller, specifically held that "like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Justice Scalia's majority opinion, in fact, provided that all manner of reasonable restrictions -- including licensing, background checks and restrictions related to mental illness and the like -- could be imposed without offending the Second Amendment.
We can and should work to pass laws or regulations, on the state or federal level, as appropriate, that impose some common sense on a gun industry that, at present, enjoys a shocking lack of oversight due to political cowardice and the power of the gun lobby. The restrictions I favor, which would in no way unreasonably infringe upon people's legal rights under the Second Amendment as currently interpreted, fall into three categories:
None of these sorts of regulations would take guns away from law abiding citizens or infringe on the their rights under the Second Amendment. All of them would work to keep guns from falling into the hands of violent criminals and discourage those who would seek to inflict mass casualties.
No, these regulations would not totally eliminate gun violence in this country. Such an expectation is unrealistic and rejecting any reasonable measure because it does not meet that unrealistic expectation would be absurd. Such regulations would, however, go a long way toward reducing gun violence.
Every lawmaker should be asked why they don't support these measures. Any lawmaker who does not have a good answer should be voted out of office.
In the wake of yesterday's deadly vehicular attack in Manhattan, President Trump, Senators John McCain and Lindsey Graham and others have called for the accused attacker to be handed over to the military, for him to be sent to Guantanamo Bay and for his Miranda rights and other due process protections afforded to him under the Constitution to be disposed of.
This is not new, of course. Men in Trump's McCain's and Graham's position have long sought such Constitutional rollbacks for terrorist suspects of a certain kind (though, curiously, not for terrorist suspects of a different kind). They most famously obtained such things after 9/11, with the passage Patriot Act, the advent of black site torture and interrogation centers and the imprisonment of terrorist suspects and men designated "enemy combatants" at Guantanamo Bay, with its attendant permanent, trial-free detentions.
Not that those were their only efforts in this regard. In 2010 Senator McCain sponsored the "Enemy Belligerent Interrogation, Detention, and Prosecution Act," which called for placing terrorist suspects -- including those whose alleged criminal acts occurred on American soil -- in indefinite military custody for purposes of interrogation, during which time their Constitutional rights would be suspended. Calls for similar measures are often renewed following acts of terrorism.
The common thread: fear and distrust of the American criminal justice system. A belief that, somehow, our centuries-old institutions are unable to handle such cases. This is a baseless and pathetic claim. Our criminal justice system has repeatedly shown that it is capable of dealing with terrorism suspects. In contrast, our habit of throwing detainees into secret detention sites and dispensing with due process and the rule of law has been a miserable failure.
Federal civilian criminal courts have convicted hundreds of individuals on terrorism-related charges since 9/11. These convictions include those resulting from investigations of terrorist and criminal acts by those with identified links to international terrorism and include several high-profile terrorists such as the “Shoe Bomber” Richard Reid, the 1993 World Trade Center bomber Ramzi Yousef, the "Times Square Bomber" Faisal Shahzad and Osama bin Laden's son-in-law, Sulaiman Abu Ghaith. In contrast, military commissions have convicted only eight. All of those prosecutions took years and cost millions. In the end, three of those convictions were overturned completely and one overturned partially.
Some who advocate for military tribunals doubt the security of a U.S. courtroom and stoke fears about the safety of the populace near where suspects are held, but such claims are baseless. Federal prisons hold hundreds of individuals convicted of terrorism-related offenses and none have ever escaped. None of the federal districts which have held or tried terrorism suspects have been attacked in retaliation.
Others say that the seriousness and high-profile nature of the crimes demand a different sort of justice system. This, however, is exactly what terror suspects want. They want to be martyrs, figuratively if not literally, and want to appear as though they have gained the special attention of our highest elected officials. When they get it -- when we publicly freak out like Trump, McCain and Graham are and put them before army officers in a special proceeding -- their supporters can cast them as warriors, taking on the United States government and the United States Army. When you put them in a courtroom in a federal courthouse, they're just criminals. Their crimes cast as simple murder, not an act of war.
There is a greater flaw with the calls for military tribunals and the denial of suspects' rights than their lack of efficacy, however: denying due process rights to our enemies defies the very values we are fighting to protect.
The Constitution is not optional. Indefinite detention, suspension of basic rights and the deprivation of Due Process flies in the face of American values and violates this country’s commitment to the rule of law. Sacrificing our principles in the vain hope that doing so will make us safe has only made us weak. Weak because it sends the message to our enemies that our most sacred ideals are not strong enough to withstand external threats. Weak because it sends the message to our would-be allies that we do not stand for that which we claim to stand and that our words and promises carry no weight.
A man attacked innocent people in New York yesterday, and he should be held responsible for his crimes. Attacking our Constitution, our federal courts, the rule of law and the bedrock values upon which our country was built is no way to do that. Indeed, doing so more effectively wages war on America and its institutions than anything a criminal terrorist suspect can ever hope to accomplish.
The mass shooting in Las Vegas that left 59 people dead on Sunday night is, on one level, shocking and on another unsurprising.
It's shocking in its violence, its cold-blooded calculation and its scale. Shocking in a way that something so awful must always be shocking to anyone who values and cherishes human life. Shocking to all of us who have not become numb to gun violence. To those of us who cannot and will not allow ourselves to become numb to it, because to allow this increasingly common and increasingly deadly sort of tragedy to become just another news story which holds our attention for a few days before being forgotten is to abandon our very humanity.
This is all unsurprising, however, because our laws and, increasingly, our very values, practically ensure that events like those that unfolded in Las Vegas will occur again and again. I'll get to the laws shortly, but it's worth talking about the culture of guns in America for a moment.
There is, obviously, a long and rich history of gun ownership in America. We are a nation born of the fighting of armed civilians marshaled into a revolutionary army. We are a nation whose land was explored by hunters and frontiersman. We are a nation populated by farmers and sportsmen and the children and grandchildren of farmers and sportsmen, the vast majority of whom were and are responsible and law-abiding members of our community. Our history -- and the largely rural character of America for most of that history -- forged a culture in which owning firearms, while never a requirement of responsible citizenship, was most certainly compatible with it. Where I grew up, in Michigan and West Virginia, there was hardly a household that didn't have at least one hunting rifle in it. I'm sure a lot of you grew up in similar circumstances.
Recently, however -- very recently -- there has been a marked shift in what it means to be a gun owner in America and who it is that owns most of our guns. Some have referred to this as "extreme gun ownership," in which people own a dozen, two dozen or perhaps scores of guns, including quasi-military weapons and hundreds upon hundreds of rounds of ammunition. This dynamic, which has resulted in a full 50% of all guns in our country being owned by 3% of the population, is perfectly legal, of course.
But however legal it is for a person to stockpile weapons like this, it's worth scrutinizing why they do so. Yes, a small portion of these people are genuine collectors. I suspect a much larger proportion of these people, however, own numerous weapons for what amount to philosophical reasons. Many of these people -- and I know a good number of them personally and professionally -- are afraid of something, be it rational or irrational. A fear egged on by the gun lobby and a conservative media that has convinced a wide swath of Americans that there are enemies hiding around every corner and that our government is their greatest enemy of all. I further suspect that we will find out that the Las Vegas shooter, Stephen Paddock -- who likely owned all of his guns legally -- harbored fears like these. Fears which, even if they did not lead him to commit mass murder, inspired him to compile a private arsenal, which in turn allowed him to carry his rampage out far more readily.
We can legislate until our pens run dry, but we will not stop the next Stephen Paddock unless we truly understand how a person can come to live in a state of such suspicion and fear that they feel it necessary to stockpile private arsenals that have only one deadly purpose. Until we understand how a country that was once comprised of households with some hunting rifles became one in which owning a dozen or more military-inspired guns became a lifestyle choice. We must, as a nation, come to understand how something that was, until very recently, thought of as a tool, became a symbol of so many people's personal politics and identity.
Achieving such an understanding may not be a simple matter, but it may not be as tough as passing new gun laws, which are obviously not easy to implement or change.
Part of this is by design. While, as a lawyer, I disagree with the legal notion that the Second Amendment confers an absolutist, unquestionable and un-regulatable individual right rather than a collective right of action (the words "a well-regulated militia" seem to be the only words in the Constitution conservative judges seem to think mean nothing) the fact of the matter is that any broad-based effort to ban certain types of firearms or to broadly restrict gun ownership in this day and age would be met with intense political opposition and legal challenge. Likely successful legal challenge, mind you, thanks to the current makeup of the federal judiciary, its view of the Second Amendment and the deep pockets of the National Rifle Association which has the entire Republican Party under its control and much of the Democratic Party living in fear.
The fact, however, that wide-ranging gun regulations seem legally and/or politically impractical in the current environment does not mean that there is nothing that can and should be done. Indeed, there are a host of common-sense regulations that we can and should pursue that do not violate the Second Amendment as currently interpreted but which would go a long way toward reining in the scourge of gun violence plaguing our country.
One of these is obvious, if only in hindsight of the tragedy in Las Vegas: outlawing devices that allow semi-automatic guns, which are legal, to be transformed into automatic weapons, which have been illegal to manufacture for civilian use for over 30 years. This relates specifically to “bump stocks,” which are attachments that enable semiautomatic rifles to fire faster, mimicking the action of automatic weapons. Under no set of circumstances should a person be allowed to legally acquire devices which convert a legal weapon into one that is essentially identical to those which are illegal. Thankfully, there appears to be some movement this week on that very issue.
Beyond the currently newsworthy topic of bump stocks, we should work to pass laws or regulations, on the state or federal level, as appropriate, that fall, generally, into three categories:
None of these sorts of regulations would take guns away from law abiding citizens or infringe on the their rights under the Second Amendment. All of them would work to keep guns from falling into the hands of violent criminals and discourage those who would seek to inflict mass casualties.
Ultimately, though, there are many complex, historical and cultural factors which have led us to this regrettably violent place in our nation's history. As such, there is no one thing that can be done to drastically reduce gun violence in this country, let alone eliminate the threat of a mass shooting. Anyone who promises that they can put an end to such things is not being honest with you.
We can, however, do many things, each of them modest in and of themselves, that work to add a much-needed dose of common sense and responsibility to an issue which has, increasingly, led itself to intense, emotion-based polarization and special interest group-fed partisan rancor. We should start to do so, immediately.