ROE WILL NOT BE OVERTURNED----BUT IT MIGHT BE KNEECAPPED

ROE WILL NOT BE OVERTURNED----BUT IT MIGHT BE KNEECAPPED

     Brett Kavanaugh, nominated by Trump to replace retiring Supreme Court Justice Anthony Kennedy, will probably be confirmed, becoming a vote, many believe, to overturn Roe v. Wade. But if the past is a guide to the future it is unlikely that Roe will be ‘overturned’. Instead, the Court’s conservative majority will, vampire like, suck the life out of it.

     The   Roe decision was handed in 1973, and in the ensuing years states opposed to it enacted three kinds of laws.  

    Third party consent statutes   required the pregnant woman gain the consent of the father before having an abortion, or of the parents, if she was underage,  but in Planned Parenthood v. Danforth, an early case,  the Supreme Court struck down a Missouri law of this type.

    Procedural and administrative hurdles imposed by state law on providers of abortion services have also been contested.  For example, in Whole Women’s Health v. Hellerstedt  a sharply divided Supreme Court found in 2016 that a Texas law requiring physicians performing abortions to have admitting privileges at a nearby hospital and abortion clinics to have facilities comparable to ambulatory surgical centers imposed an “undue burden” on women seeking an abortion.  

    The third type of anti-Roe statute involves Disincentives directed at patients, a 2016   Indiana Law Journal piece citing 14 states requiring doctors, as an aspect of informed consent, to warn patients of deleterious psychological consequences, including depression and suicidal ideation, possibly following from an abortion.

     Basically, the prevailing test used by the Supreme Court in terms of whether a state statute violates a woman’s right to an abortion is whether that law imposes an ‘undue burden’ on her opportunity to exercise that right. In the nature of things, ‘undue burden’ is an elastic term. It is probably the case that the more conservative the Justice and the more conservative the Court the less likely it is  that any particular of statute, no matter how restrictive, will be found to impose an ‘undue burden’. In that sense, Roe will probably not be explicitly overturned, rather it might, case-by-case, be made meaningless in more and more states.

     In some states, New York, California, Oregon, Massachusetts, and a dozen or so more, access to legal, medically safe abortions will continue, but in the southern states, some states in the Midwest, and a scattering of others, it will not.

     What is to be done? Other than praying for our sisters in the states likely to be affected?

     Four things.

     First, restrictive state laws will be what is at issue in coming Supreme Court cases. Those restrictive laws get passed by state legislatures, therefore folks on the ground in Alabama and Mississippi and other likely places have to carry the fight to every precinct, hoping to win at least enough seats as to be able to block them from being enacted.

     Second, those of us in states less likely to impacted have to lend support to candidates in what might seem to be obscure, remote races, but those races might have everything to do with whether

a woman in that state has access to a safe, affordable abortion. Those most in need, those most desperate, might not be able to travel to New York or California for an abortion.

     Third, given that the Senate ratifies or rejects the president’s nominee for a seat on the Supreme Court, we must fight tenaciously for control of the senate. If you are in a ‘safe’ state such as New York, with two pro-Roe senators, contribute to the campaigns of pro-Roe candidates in less safe states.

     Fourth, keep the faith but wield a sword. The road is long and the struggle hard. The anti-Roe forces have been at it for more than 40 years. We must be as determined, as relentless, and as convinced, that in the end, we will win.

.

Gun Crazy

     Future generations will ask, ‘What kind of people were they? You could kill their children and they would not do anything about it.” And future generations will marvel that it was the children who finally rose up to save themselves from the collective madness of their elders.

    Fantasy passed off as sober judgment sustains the present gun situation.   

    “Mental illness causes mass shootings”, they say, even though mentally ill people can be found everywhere in the western world, but only the United States sees constant gun carnage.

     “Raise the age for buying assault weapons from 18 to 21”, they say, even though most mass shooters are over 21.

     “Do more background checks”, they say, even though these laws are notoriously porous.

     And in the wake of the latest school slaughter we have the craziest suggestion of all.

    “Arm teachers,” they tell us even as common sense and hard data say otherwise, an article in the International Journal of Police Science and Management indicating that expert police shooters are accurate less than 40% of the time at 21 feet. Yet a teacher in a chaotic situation, as students and colleagues flee for their lives, is supposed to shoot it out with an armed invader. It is a stupid, vulgar suggestion offered by fantasists, crazies, and craven political vampires bloated on NRA  money, insensitive to the fact that real lives are at stake.  

     Magical incantations and spectral warnings sustain periods of collective madness such as the Salem witch trials and today’s gun lunacy. “My Second Amendment rights are violated if I can’t have as many assault weapons as I want.”, the fantasist cries, perhaps ignorant of the fact that there is no Second Amendment right to own assault weapons, the relevant Supreme Court decisions, Heller (2008) and McDonald (2010) affirming a right to have a gun for   self- protection but no right to have any kind of weapon, anywhere, for any reason.    

     “I need my arsenal to protect against a tyrannical federal government”, the fantasist cries, evoking images of star-spangled  freedom fighters taking to the hills, alluding Washington-ordered drone strikes. It is all the stuff of madness yet real people die because of feckless gun policies yielded by this madness.

    It is possible, I suppose, to live with the absurd so long that the absurd comes to seem normal. It is a virtue of the children that not having lived with this absurdity as long as their elders they can more easily see the situation for what it is. The problem is too many guns, too easily available. It is as simple as that, and perhaps the children can bring their elders to value their young lives as much as they value their guns.   

     

Sisters Voices

    As a black man active for years in the struggle for racial justice I have, on occasion, been impatient with whites offering advice about what black movements should or should not be doing. Hence, as a male who has never experienced sexual harassment I am somewhat hesitant to offer women advice on how to proceed in these fraught  times. On the other hand the sociologist, George Simmel, suggested that the ‘stranger’, the person somewhat apart from a situation,  may have a perspective useful to those more deeply involved. Hence, let me offer the following:

    There is a deep split among white women, and that gap has to be closed in order for the movement for gender justice to achieve meaningful, lasting change. As is well known, 53% of white women voted for Donald Trump despite the Access Hollywood tapes and the testimony of women he abused. What is less well-known is that this vote represented a pattern rather than an aberration. Of the 105 women in the House of Representatives and the Senate, 78 are democrats, mostly from blue states. In other words, red state white women tend to send old white guys to Washington to make decisions on a whole host of matters that impact them negatively as women and as citizens. Prime examples are Chuck Grassley of Iowa, who argued most of us are not rich because we spend “every darn penny….on booze or women or movies….”, and Oren Hatch of Utah who asserted that “billions and trillions of dollars” are being spent on hordes of citizens who “won’t lift a finger and expect the federal government to do everything.”  Obviously, white women in red-state Iowa and red-state Utah are not solely responsible for these troglodytes being in the Senate, but they helped put them there.   

     This is written a week before the Alabama senate election, and perhaps white women in that state will surprise me by breaking for Doug Moore, but I doubt it. I suspect most will vote for a man credibly accused of being a child predator. I would be very happy to be wrong, but a Moore victory would underline my basic proposition: women in the MeToo movement have to find some way of speaking to red-state women who voted for Trump and who will probably vote for Roy Moore.

     In the end we are talking about numbers and power. If the democrats are to regain power in the House and Senate they need to hold on to the seats they have and win a number of seats in red-states. The stakes are as high as they can be. A year ago no one would have thought that Roe v. Wade, or basic civil rights legislation, or gay rights, or elementary environmental regulation could be on the line, but they are. We are one Supreme Court justice appointment away from reversal of decades of progress for which countless thousands have fought, and many have died. We need the numbers in November of 2018 in the form of turnout, particularly in red states, to gain the power to protect what our struggle has achieved and move forward to places only dreamed of.

     And thus I come back to my initial point, it is crucial for the sake of all of us that the MeToo movement speak  organizationally and on an individual basis to red state white women who helped put the Trumps and the Grassleys and the Hatchs in power.  Clearly, we must all reach out to our sisters and brothers in red states, personally or through whatever affiliations we have, churches, unions, civic organizations, but I cannot speak to the waitress who voted for Trump, the hairdresser who supported a Grassley, the secretary who might vote for a Moore, in the same terms as a peer, another white woman. 

     The road is long and the struggle hard and justice always seems like a dim light far ahead that will never be reached, but we can, with ceaseless effort, move closer to a sunlit place.    

   

What’s Wrong With the ACLU

     I stopped contributing to the ACLU in 1978 when the organization intervened on behalf of the American Nazi Party which had been denied a parade permit by the Skokie, Illinois City Council.   The Nazis had chosen Skokie because of its large Jewish population and intended to appear in full swastika regalia.

     It was not a matter of my denying that the Nazis had a “free speech”, First Amendment, right to march, rather I  did not believe that I had an obligation to pay for their forum.  It was my view that the ACLU did not have unlimited resources. The money and time expended on one case was money and time not devoted to another. I could not bring myself to believe that there was not at that time some poor guy on death row because he did not have adequate counsel or a woman somewhere being harassed on the job with no one to come to her aid. I wanted whatever money I could contribute to organizations seeking social justice to be spent on those kinds of cases rather than facilitating Nazis harassing Holocaust survivors.

     Update 40 years to Charlottesville. But for the ACLU going to court on their behalf the Klan, the Nazis and the other assorted haters might never have been able to march, and again people of good conscience have to ask questions about the organization's actions.

    Does your conception of “speech” embrace thugs carrying assault rifles  and torches and shouting Nazi slogans?

     Even if it does, are you morally obliged to help promote this “speech”?

     Could the contribution you made vindicating the constitutional rights of Klansmen and Nazis have been spent on behalf a kid doing serious time because his constitutional right to assistance of counsel was not honored, or  on any of countless other extant failures by the legal system to respect the rights of the poor and the powerless?

     There is nothing wrong with refusing to expend available time or money on certain kinds of matters where issues of constitutional rights are in the balance. I did criminal appeals when I practiced law, pleading on behalf men convicted of murder and other serious felonies, but there was one type of case I could not, would not handle----people convicted of child abuse.  That did not mean that I believed the constitutional rights of child abusers should be ignored. It was simply a matter of choosing not to spend my time or money vindicating those rights. There were other attorneys who did, and God bless them, just as there are other  attorneys ready to step forward on behalf of the Nazis and the Klan.  But, even had there not been, my position would be the same. There is a certain personal economy relative to time and money that serving certain kinds of needs rather than others. 

     There would be nothing wrong with the ACLU simply recognizing that every hour spent on Nazis is hour not spent on others who may have no one to speak on their behalf.        

The Reichstag Fire 2018

THE REICHSTAG FIRE----2018

     One hour after the car flying a flag emblazed with Arabic lettering slams into a crowd of tourists waiting to get into the Smithsonian National Museum killing 34, President Trump goes  on the air. The two men shot dead by security guards were Isis members, he informs a nation in shock, part of a network that has slipped into the country and gone underground. Others are at large and citizens face danger from every side.  Our enemies cannot be allowed to spread lies and sow confusion lest the nation be destroyed. Marshal law must be imposed, he avers. Suspects must be rounded up. Anyone whose actions place citizens in danger must be taken into custody.

    In the wake of his remarks, television commentators, arms waving, screaming incoherently are dragged away as screens go black. The jails fill quickly,  spilling over into school gymnasiums as round ups take place. And as evening comes, gun fire can be heard in the streets. None know what the dawn will bring.

     What is being described is as a ‘Riechstag fire’ scenario. An authoritarian figure is in power and a staged or actual incident occurs,  offering  justification for closing the gap between ‘great power’ and ‘total power.’ The survival of the nation is said to be at stake. The enemy is among us. Legal niceties must be foresworn lest his evil grip tighten around the nation’s neck.

     Over the next 48 hours President Trump is a constant presence on television, agitated, bellicose, declaiming on  plots uncovered and plotters seized, warning of dangers yet to come. Leaders of the opposition party and various other prominent figures across the land have shown themselves to be feckless weaklings, unwilling to support  the steps necessary to protect the nation, he declares,  and are now under house arrest. Others have already fled abroad, clear evidence of their guilt. Newspapers and other media outlets sowing confusion and doubt have been shut down or taken over, able no longer to lie to the nation and attack those sworn to defend her.

     A series of occurrences in Germany prior to World War II gave rise to the term ‘Reichstag fire’ event. Adolph Hitler was appointed Chancellor on January 30, 1933, the Nazi party having won a plurality in parliament in the depression ravaged country. Four weeks later the building where parliament met, the Reichstag, was set afire, leading Hitler to pressure President Paul Von Hindenburg into supporting implementation of an emergency decree suspending civil liberties. And the rest, as they say, is history.     

     Let it be said at the outset that Donald Trump is not Hitler. Trump is a vulgar, feckless, con artist, with  a short attention span, no fixed beliefs, and little knowledge of anything outside the narrow sphere of his personal experience. But while he lacks the energy and imagination to construct a Reichstag fire scenario, others around him do not.  Steve Bannon, his chief advisor, Jeff Sessions, his attorney general, and Stephen Miller, a key White House appointee, are known to have a ‘blood and soil’ vision of America, a vision of the “real” United States as white and Christian. Indeed, Jeff Sessions has spoken approvingly of the 1924 immigration law that favored people from western Europe and the British Isles while disfavoring people from Southern and Eastern Europe,  Italians, Jews, and Slavs.

 

      This “real” United States is said to be under assault from the outside as third world foreigners flood the country, taking jobs from real Americans and committing crimes. And there are also internal forces ravaging the culture, militant blacks, liberal apologists and champions of a political correctness that libels the country’s proud heritage, stifles free speech, and seeks to instill guilt about such phantasms as ‘white privilege’.

    The real Americans must now do whatever it takes to stop the foreign hordes from continuing to flood our shores, we must turn loose the police to restore law and order in inner city jungles, and we must pass the toughest voter laws possible to keep the freeloaders and the takers and the liberal, ‘hate America’ crowd from putting politicians into office who sell out the real America. 

      And if these things do not work, maybe it is time to look for the kerosene and a match.

    “The only limits to what we can achieve is what we believe we can achieve----” proclaimed Trump whisperer Stephen Miller.

The Purity of Fools

The Purity of Fools

       Are Conservatives simply more intelligent than liberals?  Is that it? Otherwise how do we account for liberals, like characters in a Three Stooges movie, stepping in the same mud hole again and again then wondering why their cloths are stained. Let me be specific. Al Gore lost Florida and the 2000 presidential race because 90,000 liberals, not finding him pure enough, voted for Ralph Nader who had no chance at all of winning, thereby giving us George W. Bush, the Iraq war, a bad economy, and a retrograde Supreme Court appointee who has savaged liberal causes.

     Fast forward to 2016. Hillary loses Michigan by 11,000 votes, but 51,000 liberals, not finding Hillary pure enough, voted for the Green Party. On the other side, conservatives sucked it up, delivering only 30,000 votes to candidates who might have been more to their ideological tastes but who had no chance of winning.

     The same held true in Pennsylvania. Only a small number of conservative voters deserted Trump for candidates to his right while 50,000 liberals, not finding Hillary pure enough, voted Green, thereby delivering the presidency to a man whose Environmental Protection Agency Secretary, less than a week in office, denies that carbon dioxide emissions effect the climate. Again the purists have stepped in it, but this time none of us may be able to wash the mud off. Once the average global temperature rises as a consequence of environmental negligence it cannot be gotten down again. Once, a retrograde Supreme Court nominee tips the balance against a woman’s right to choose it will not be coming back anytime soon.

     The purity of fools has brought us to a bad place, but with any luck, the game will be played again, in 2018, and beyond. Let us learn from out conservative brethren. It is the final score that counts.

     A friend mentioned recently hearing otherwise progressive and sensible people expressing doubts about Hillary because she isn't 'likable'. My response to that kind of observation is basically as follows: 

         The question of Hillary’s ‘likability’ is irrelevant in terms of the 2016 presidential campaign. Someone will be sworn in as president in January of 2017 and that someone will make 1 to 3 nominations to a Supreme Court that will make decisions about reproductive rights, voting rights, the rights of labor, the legitimacy of environmental regulations, and other crucial issues. Who would you rather have making those nominations---Hillary Clinton or one of the clowns on the republican side?

2.       The chatter about her ‘likability’ reminds me of the blather during the Bush-Gore campaign in 2000 about Al Gore being too stiff and distant whereas George Bush was ‘the kindda guy you could have a beer with.’ You see where that kind of thinking got the country.

3.       And yes, there is a double or even triple standard at play in popular discourse about Hillary, a standard applied to her that is not applied to the men running for president. A petulant punk like Marco Rubio gets taken seriously as a candidate, and a sputtering bully like Chris Christie is considered ‘tough’, whereas a woman engaging in the same kind of ungrammatical rants would be lambasted as hysterical.

4.       The most subtle success of the powerful interests running the country lies in their colonization of the minds of those they want to control, getting them to obsess about things that ultimately contribute to keeping them down.  That women should be at all concerned with whether Hillary is sufficiently ‘likable’ represents the successful colonization of their minds by people with no interest in addressing the real issues facing women.   

5.       The Supreme Court is generally assigned blame for George Bush becoming president in 2000 by deciding the election in his favor. In truth however, part of the blame should also be put on those who voted for Ralph Nader, asserting that Gore was not ‘pure’ enough for them ideologically. We do not want people who should be voting with us repeating that error based on irrelevant concerns, such as Hillary’s ‘likability’.

    There are real issues at stake in this election. Real people will be seriously damaged by the wrong outcome. Our collective interest in moving toward a fairer society and a sustainable environment will be negatively impacted.  Let’s not have synthetic ‘issues’ generated by a mindless media and those who do not have our interests at heart distract us from getting out and doing the hard work necessary to achieve victory for Hillary and for ourselves in 2016.  You can be certain that those who mean us no good will be hard at it. 

                                                                                                                                            John Howard

Whites Shoot Cops---Cops Shoot Blacks

Whites Shoot Cops---Cops Shoot Blacks

     Everyone knows that police shootings of unarmed blacks is, sadly, a common occurrence. Less well known is the fact that a cop is more likely to be shot by a white assailant than a black.
     More than 30 years of research establishes without question that blacks are "disproportionately among those at the wrong end of police guns." In some parts of the country they constitute 60 to 85% of police shooting victims. On the average, nationwide, they are six times more likely than whites to be shot by a cop,  and in some big cities they are three times more likely than whites to gunned down.
     Most of the time the killings are deemed justifiable homicide based on the cops asserted fear that the black assailant posed a lethal danger, yet the fact of the matter is that a cop is more likely to be killed by a white assailant than a black. In 2012, 48 law enforcement officers were killed in the line of duty. Of the known offenders, 30 were white and 16 were black (5 were of other ethnicities). From 2003 through 2012, 304 of the assailants were white and 259 black. Given that stop and frisk and similar tactics  in the big cities and places like Ferguson generate more police contacts with blacks per cop than with whites, the probability of any given black encounter being lethal for the  cop is less than it is for any given white encounter.
     So why are blacks more likely to be shot?
     The killing of Amadou Diallo, a 22-year old West African immigrant by New York City police provides an answer that probably holds for 90 percent of the questionable cases. Diallo was shot, according to the police, because of his 'suspicious movements". The 'suspicious movements' were the actions that for a young white man in a different part of town would have gone unnoticed. (Diallo's family later won a $3,000,000 judgment against the City.)
     Research by Plant and Peruche, two psychologists at Florida State University,  indicated that in a simulated, laboratory situation "officers were more likely to mistakenly shoot unarmed Black compared with unarmed White suspects".  The same research also indicated that with extensive further training "the officers were able to eliminate this bias".
    Some might argue that bias or no bias, higher crime rates in minority communities account for more minorities being shot by the police. Research I did many years ago on the Las Angeles Police Department is relevant in reflecting on this argument. At that time the Department was divided into so-called patrol districts in which 'field interrogation' (roughly analogous to stop and frisk) was the preferred mode of policing. The crime rate for serious offenses was indeed higher in minority districts than in the white districts, but an analysis of the figures indicated that if one assumed each crime was committed by a different person, then for every 20 persons in the  white districts, 1 had committed an offense, while for every 20 persons in the minority districts, 2 had committed a serious offense. In other words, the overwhelming number of people in both communities were law abiding, but based on a difference of 1 person in 20, every member of the minority community was put at the risk of a police encounter as they went about their daily business, with the attendant risk of the innocent being shot, but almost no members of the white community.
     The assumption of each crime being committed by a different person was analytically necessary but  the reality was that a small number of people in each community commit multiple crimes, hence probably only I in every 30 or 1 in every 40 persons in the minority community had committed a serious offense, making the habitual blanket intrusion for behavior overlooked in other communities even more egregious.   
    Change is possible but there has to be the will for a Department to do what is necessary to change procedures and reduce bias. Clearly, some departments have it, other do not. And where it does not exist the struggle must continue by all legitimate means.