Just Books
Author Talk
08/10/10
Mimi Marziani: In recent years, use of the filibuster has exploded – and sparked a vigorous public debate. How does your book contribute to the discussion on the filibuster?
Greg Koger: A major contribution is my study of both chambers of Congress during the 19th century. The House actually had much more obstruction than the Senate during the 19th century. It goes through the cycle of growing filibustering, and then by the end of the 19th century, the House is eventually paralyzed by filibustering -- the way many people complain about the Senate now. Since a lot of rhetoric about filibustering is based on loose historical claims, its aim is to nail down the history of filibustering.
And I offer a description of the emergence of the modern Senate. Neither of the previous books on the topic explains how we get from the Senate of the 1900s to the Senate of 2010. So, that is one of the main academic contributions -- telling the story of the Senate transition.
We’re at a time in the Senate in which people respond to the number of filibusters; historically this has not had any effect on the filibusters and may have facilitated filibusters by making them easier.
MM: As you know, the term ‘filibuster’ is broad and refers to almost any tactic strategically employed to obstruct legislative action. As a result, its hard to measure filibusters in an objective way. How did you choose to measure filibusters and why?
GK: For the historic Senate, I didn’t have very high-quality secondary sources, so I looked for first-hand evidence that filibustering was going on. And on top of that, I had a strong idea, based that most of the filibustering that was going on included tactics that were easily measureable in the Congressional Roll Call record. That is, calling for votes on procedural questions just to chew up time. The disappearing quorum is another useful, measurable, tactic. It is when legislators refuse to vote as a strategy to break a quorum, to prove that there aren’t enough people there to make a decision. Then that brings the chamber to a halt. These are things that I looked for in the Roll Call record, in the House and Senate. That was my strategy for the 19th Century.
In the 20th Century, filibustering in the House had been clamped down. And Senators became more inclined to use speaking, rather than dilatory methods and disappearing quorum, as their method of choice.
I literally went through The New York Times database and looked for articles that had the words ‘Senate’ and ‘filibuster’ in them. I supplemented that by going through the Times magazine online database and some Congressional Quarterly publications, as well, looking for the word ‘filibuster’. I was using over 7,000 articles with the word ‘filibuster’ in it from the 20th- and 21st centuries.
MM: NYU Law professor, Rick Pildes, says today’s homogenous, hyper-polarized parties can’t be compared to the parties that existed before the 1964 Civil Rights Act. Pildes believes that today’s polarization is much more extreme and he believes that it is directly linked to the increase in filibusters and other types of obstruction. How do you respond to that?
GK: Polarization was high at the beginning of the 20th century. This is not just my impression. I am relying on conventional measurements of partisanship used in political science research for years, particularly party unity in Congress – that is, the extent to which party members in Congress vote together.
Keith Poole and Howard Rosenthal created a new measure that’s gotten a lot of recent attention. Their polarization scores are based on complex algorithms by which they attempt to determine the ideology of the members of Congress. Sure enough, if you look at the last forty years, you see a growing polarization in Congress. But if you go back historically, you see that at the turn of the century—the end of the 19th century, early of the 20th century—was also a peak time of polarization. These are conventional measures. And they coincide with what a lot of historians and political scientists who study party history know about parties at the end of the 19th century, eginning of the 20th. Namely that they dominated the function of Congress, that a lot of the fighting and conflicts that go on within Congress between party leaders and the mass public, parties were highly hyper-developed. Every person felt obliged to declare loyalty to one party or the other; they completely controlled nominations.
It is true that if you compare the parties of 1963 to the parties of 2010, things look a lot more polarized. Ultimately the question is: If I use data from the early 20th Century, what does that tell us about filibustering? And what it tells us is that there is no single link—no causal link—between partisanship per se and filibustering.
Meanwhile, if, for other reasons, there is an increase in filibustering over time—and I identify those other reasons—it makes sense that as the Senate becomes more polarized, that filibusters are more likely to fall between party lines rather than to pitch regions against each other. This is what we saw when the Southerners filibustered against the rest of the country on civil rights. Also, at that time you saw much more ideological filibusters where there would be a small group of Democrats or Republicans who are fighting together against the rest of the Chamber—you see fewer of those now-a-days. It is mostly about one party, usually a minority party, not liking what another party is doing. Those conflicts between parties are not new to Congress. What is a new development in the Senate, historically speaking, is that it is relatively easier for a minority party to exercise this opportunity to filibuster.
MM: When you have a minority party that acts in lock-step, the filibuster can become a more powerful weapon. It can be more powerful in a way that a minority veto could not have been when you had maybe more factions.
GK: Right. One thing that may have changed, in addition, is that during the ‘70s and ‘80s it was probably easier for the majority party to buy off, or bring in, some segment of the minority party, and then to filibuster. Polarization, perhaps, has more of an effect on the Senate because it is harder to get the votes to end the filibuster.
MM: In your view, the scarcity of floor time in today’s Senate is connected to filibustering. Could you explain that?
GK: Senators are more likely to filibuster if the costs of doing so are low—that’s a simple idea, right? So, start with the idea that Senators are more likely to filibuster if it is easy to do so. And so, as costs decrease, we will observe more filibustering.
So, the big change in costs is a change in tactics used by the majority of the Senate against the filibuster. It used to be that the tactic of choice was attrition—just wait it out, if someone wants to delay a bill, just sit down and watch them speak -- which is sort of nicely illustrated in the movie Mr. Smith Goes to Washington. The one Senator with the small team will get exhausted and collapse, and the other team will win.
And so, in that old-style type battle, you would only see the minority winning if time was especially precious. Or, when there was a very large group of people working together to delay things. This is why Southerners were very effective. There were, say, 20 of them in a civil rights fight and they were very well organized and willing to stand and speak day after day.
Once Senators stopped waging these old-style attrition battles, they significantly decreased the costs of a filibuster. Somebody who is thinking of filibustering no longer has to say to him or herself, ‘do I really want to be on the Senate floor day after day?’; ‘do I really want to take a public stand against this bill which may be popular?’ Take that out of the equation and, you know, it seems a lot easier—lower cost—to filibuster.
MM: And you remove uncertainty, correct?
GK: Yes. In one sense, that uncertainty is reduced in that it is easier to count the votes than it is to count intensity. So if a Senator says, ‘I am going to filibuster against that bill,’ that’s one thing. That’s a unit that you can easily measure, you can count heads, and then have a good idea of whether the bill will pass or not. But if somebody says they are going to stand on the floor and speak against the bill, you don’t really know how intense they are until they actually do it. So, a lot of times when these old school fights play out, there is a lot of uncertainty at the outset about just how serious the other side is.
Now, I am not the only person to have gotten this far, to have said that there has been this tactical shift by Senate majorities, and that it’s easier to filibuster, and that’s why we have more filibusters. The next point is where the book ends up—trying to explain why this tactical shift occurred in the first place. And to go that extra step, you have to think about the value of time for Senators. To wage a war of attrition costs everybody time. Obviously the obstructionist has to be on the floor speaking. So, everybody that is fighting against that filibuster has to be in and around the Chamber. And so, in one of these old school fights—if you watched Mr. Smith Goes to Washington—Mr. Smith is filibustering, but then a majority of the Senate also has to be there all night while he filibusters because Mr. Smith has the ability, in the absence of a quorum, and then everybody sort of has to show up on the floor and say, ‘yes, we’re here,’ if it ever happens.
Well, that’s quite a burden for the people who are fighting the filibuster. And the more often that they occur, and the more valuable the other uses of their time, and the harder it is to actually wage one of these wars of attrition, and so the book gets into the increasing value of their time. So, while I don’t measure this directly -- things that are going on in the 20th century include an increase in the Senate’s workload; the federal government is growing; you have wars to manage. And so, there are other things waiting to come up on the Senate floor. But also, essentially, they have more things they can do with their time. D.C. has become a more livable place. They could be going out and seeing a show. Or, they could stay in the Senate Chamber all night. They could be catching a plane and going back to their home state, visiting with their constituents. Or, they could be leaving the city altogether to speak to party activists for the campaign they hope to wage someday. So, they have other things to do with their time. Their options got a lot better, and the pressures of other topics waiting to come up on the Senate floor increases. It becomes less feasible for them to wage a war of attrition every time some Senator is unhappy with what is going on.
MM: Do you think there is any connection between the campaign finance rules that govern the Senate and the scarcity of floor time?
GK: Yes, I think so. In two ways. Firstly, a lot of a Senator’s time seems to be consumed by fundraising. That makes it harder for them to keep up with their legislative duties, much less wait out a filibuster on the Senate floor. Secondly, the fact that Senators must be responsive to potential donors makes it difficult to compromise when there is a filibuster happening on the Senate floor. This is part of a broader pattern in American politics. The activist and the donor play a large role in who gets nominated, and who gets money to wage a real campaign in American politics. As a result, it is harder to compromise.
MM: Do you think that campaign financing along the lines of public funding would, or could, lead to a decrease in filibusters?
GK: It is possible. If I were trying to make a case for public funding, I would think more broadly that the pressures of fundraising eat up more of the Senator’s time. It is not just the fact that they’re not waging out filibusters. We may imagine that they are going to community meetings, and learning about legislation, and building up votes. And all of the legislative work that we would like them to do competes for a Senator’s time with fundraising. I think there is a broader point to make, not just on filibustering, but on the pressures of a Senator’s time. I would be relieved if they didn’t have to fundraise so much.
MM: There are now a number of ideas for curbing obstruction. What do you think of Senator Tom Harkin’s proposal to decrease the number of votes needed to obtain cloture? And more generally, which ideas for reform do you think have the most hope of being effective?
GK: I am not at all optimistic that the Harkin reform would have a beneficial effect. The problem is that it is focused on changing the cloture threshold. If you want majority rule in the Senate, then let’s completely obliterate the right to filibuster and impose majority rule. If Senators are not willing to do that, then a threshold that gradually reduces the votes, three votes at a time, would probably have the opposite effect of what Senator Harkins intends -- it would invite much more filibustering.
If I were a member of a minority party in the Senate and the Harkin proposal is adopted, I would respond by filibustering everything -- every motion, every bill, every amendment. What you need to understand, is that even on the fourth cloture vote, the majority could out vote me. But by forcing them to cast four cloture votes on everything, I would redeem a great deal of bargaining leverage and get back to at least where I was before. It is the sort of idea that appeals to people who only care about one thing at a time: that one Supreme Court Judge; that one major bill. But when you think about how the rule would apply to a Senate who has to make hundreds of decisions over the course of two years, it would be very ineffective. Think of everything the Senate has to do, and then imagine if they have to go through four cloture votes to do it in this post-Harkin world.
There is this idea that filibustering can actually have a positive effect on promoting compromise, on limiting effects on party leaders, and driving bad legislation from a chamber from time-to-time. Rather than eliminating filibustering, I would promote a mechanism that would reverse the burden filibusters create. Right now, when there is a filibuster and then a cloture vote, in order for cloture to be provoked, 60 Senators have to vote for cloture. I would reverse this and require that 41 Senators have to vote against cloture. It is the same threshold, but it reverses the burden of participation.
MM: I wonder if that would change the accountability.
GK: Right. It changes the ethic. The idea is that if a bill or nomination makes it to the Senate floor, it deserves a vote. And then the question is, who is keeping us from having a vote?
But what I also like about it, is that in a world in which the time of a Senator is extremely valuable, it imposes some greater cost on people who are waging a filibuster. Imagine that the majority party starts to file its cloture motion on Thursday. That means that the vote will occur on Saturday. Let’s say they file their petition on Friday. That means you’d also have a vote on Sunday. And so, in order to block legislation, or nomination, the people who are opposed would actually have to come in on the weekends. They wouldn’t be home in their states; they wouldn’t be off having fun. They would have to be serious enough about their filibusters to give up on the other things that they could be doing with their time. That’s why I like it.
MM: Appropriations?
GK: Appropriations is one. So, Norm Ornstein at the American Enterprise Institute is advocating that there shall be no filibustering against appropriations bills. It’s a basic job of Congress to pass these appropriations bills. They’re getting gummed up. In a simple category, I would set up expedited procedures for executive nominations, and some sort of quick super-majority process for simple legislation. In the House, if I wanted to pass a bill to, say, name a post office, they have what is called ‘Extension of the Rules.’ So, I bring up a bill, talk for thirty minutes, and then there is a two-thirds vote to decide if it passes, or not. The Senate has traditionally passed a law that that type of legislation must be passed by unanimous consent, which then means that any one Senator that is feeling cranky that day can keep it from passing. So, to prevent one cranky person from jamming up the small bills, it would make sense to have something like the ‘extension of the rules’ process. Which is, bring the bill, do the vote, let it pass quickly.
MM: Theoretically, I think that that could impact the tradition of holds because that would basically make one Senator placing a hold responsible for proving that it was a viable threat for a larger-scale filibuster rather than just a threat of them objecting to unanimous consent.
GK: Well, more than that, it would be an assault on the practice of holds. A hold, in its most general form, is keeping legislation off the floor for a limited period of time—just a few days. And often there are sincere reasons for doing this; you want to actually read the bill, you want to prepare amendments. For Senators, they often want to be in on the discussions for what process will be used when the bill comes to the floor. It is all pretty legitimate. It becomes illegitimate when people complain when it is really a one person veto that becomes unanimous. In the later case when a person has just been vetoing a bill or nomination for an extended period of time, just sort of sitting in doldrums for a while, then it would be great to have some sort of process that would bring down the one person, or the ten people, that are objecting, to just get it done.
Lastly -- and this is actually a standard suggestion going back to the Congressional Reform Committee of 1993-94 -- if, like me, you think that filibusters can be good, and it makes sense that major legislations have to run that gauntlet, it doesn’t make sense why a bill should have to run the gauntlet multiple times. So, it would make sense, for example, to eliminate filibusters on the motion to proceed. That’s an agenda setting motion that sort of brings a bill to the floor. So, when financial reform was passed in the Senate, the Republicans were first filibustering against the motion to proceed. They were arguing that they didn’t like the bill. But if you don’t like the bill, that means bring it to the floor and offer amendments to it. It doesn’t mean that you should keep the bill off the floor in the first place. So, if you don’t like the bill, bring it to the floor. Either offer amendments or filibuster. At least let it get to the floor in the first place.
A second point is that it has gotten a lot harder for legislators to go to conference committees because if a Senate committee decides they want to go to conference committee on the bill, there are actually three motions that have to pass to do that; to disprove another Chamber, to request a conference, and then to appoint conferees. So those motions, of course, are subject to a filibuster. I would condense that, or actually even out the allowance to filibuster the motions to go to conference and start the negotiation process, and still allow Senators to filibuster the product of that Committee. But at least allow the negotiation to occur.
MM: Those reforms would ensure that the filibuster is actually doing what its defenders say it is supposed to do, which is to promote actual deliberation and debate. Whereas, if you’re filibustering a motion to proceed, you’re actually preventing the deliberation.
GK: That is correct. If these reforms actually got to a vote, it would be hard for Senators to sincerely oppose them – except out of raw interest for maintaining every opportunity to filibuster, if they’re in the minority.
One last thing on that point, Senator Merkley of Oregon has proposed that the Senators adopt reforms that are implemented in six years, since they don’t know where they will be in six years. And that way, they can think more about the broader implications, and less about their own strategic situation that they want right now, and for the next two years.
I would imagine, if the Senators actually did walk out from behind closed doors and say, ‘we’ve got these reforms and we want to implement them in six years,' that the next question will be: if they’re good in six years, why not make them active now? I think that would be a very tough question to answer.
Gregory Koger is an assistant professor of political science at the University of Miami and the author of Filibustering: A Political History of Obstruction in the House and Senate (Chicago Studies in American Politics), University of Chicago Press.
Mimi Marziani is a lawyer at the Brennan Center for Justice.
Tags: Democracy, Filibuster, Greg Koger, Mimi Marziani, Author Talk
08/04/10
In his new book -- Partner to the Poor: A Paul Farmer Reader -- Paul Farmer, acclaimed 'saint,' chronicles his true-life, world-saving adventures.
Dr. Farmer talks with Diana Silver, Ph.D., about his work and the new book.
DS: Let’s begin with Haiti. How is the relief effort going?
PF: A lot of energy and resources went into immediate rescue and relief efforts -- with predictable results: not many people could be rescued. This is not atypical of a disaster of this magnitude.
The reconstruction efforts are slower. There are fewer resources. It is taking a while to get things going. Though there has been enormous effort to coordinate a better response, we can’t give ourselves good marks yet on reconstruction. For one thing, the number of people in camps with displaced homes continues to grow, not to shrink. That’s the biggest problem: shelter and basic services for people who have lost their homes, or are afraid to return to them. We haven’t been able to help much in this regard.
DS: Is there -- anywhere in this difficult situation -- cause for hope?
PF: Reconstruction is slower than what I/we hoped. This was a catastrophe on a nearly unprecedented scale. Some think as many as 20% of all federal employees were killed; all federal buildings destroyed. So how quickly can we expect reconstruction? But there are glimmers of hope – including the creation of the Interim Committee for the Reconstruction of Haiti, which had its first meeting and is designed to green-light a broad range of solid projects.
DS: Let’s talk about your new book, which is a gift to professors, because it is so beautifully organized. It’s organized dramatically, rather than chronologically. Can you describe the dramatic, organizing themes and say a bit about why you structured the book in the way that you did?
PF: Some of the early pieces cover the anthropology of epidemic disease and focus on Haiti, where I’ve worked for the last 28 years. It moves more broadly to some of the issues that animated the first years of my work, but focuses more explicitly on basic social and economic rights for people living in poverty. By basic rights, I mean the rights to water, health care, education and shelter. The issue of
sexual violence runs through the book. It’s a very difficult issue for physicians. There’s a focus on social forces that put some people at risk for illness or other bad outcomes. Racism is an example -- as is gender inequality.
DS: Structural violence is a loaded term. I imagine you use it intentionally. Could you speak elaborate?
PF: It is not an original concept. Many have found it to be too loaded. I began using the term to convey the sentiments and the experience of people I worked with in Haiti, in Peru, later in Africa. These people experienced every day life as violent and used loaded terms to describe their experience.
Let me give you an example. A woman in rural Haiti has many children and spends every waking hour in a struggle for food, for wood to cook with, and for water; she experiences this as a kind of violence done to her. I think it’s better for those in my position to echo her view, not just her anger, but also the sense of injustice with which she regards her experience I’m not wedded to the concept, but it is useful.
DS: In the section on structural violence in the book, you introduce the idea that health is a human right. And, you critique human rights groups that adopt political neutral positions or focus on civil rights, rather than human rights. Is this a fair description?
PF: It is an insider-loyalist critique. A number of prominent rights groups advocate for political and civil rights. These are important struggles. But there are other rights: the right to health care, the right to clean water, the right to education. These are the rights I consistently heard about in places like Haiti. And very often these rights are not much discussed in mainstream health organizations. So, yes, mine is an insider loyalist critique of an overly narrow focus on civil- and political rights.
DS: You have been critical of neoliberalism and some of its solutions to some of these problems. Can you say a bit about this?
PF: There are broad economic policies that favor social safety nets and others that really don’t. If you look back over discussions on various economic disasters in the country -- like the Great Depression -- this was a very vibrant topic of discussion. FDR and his cabinet members were very explicit about the need to think hard about the ill fed, ill housed and unemployed.
This is something Americans ought to be proud of; it’s part of our history too, just as is the more unfettered growth period that can sometimes collapse as we’ve seen with the recent economic set backs. It is important to say that we need to fight more to make sure that everyone has a right to basic health care. We are not going to see this happen under a lot of these more neoliberal economic policies. Another way of putting this: we need to focus on social protection as it benefits our physical and emotional well being, and also strengthens the economic well being of the public.
DS: Some advocate for neo-liberalism on pragmatic grounds. But your critique of neo-liberalism is also made on pragmatic grounds, yes?
PF: If you find 10,000 NGOs, as you do in Haiti, then you know that they are filling a space left by others. The others, in this case, are the public sector, the state itself. I work at an NGO, as a volunteer for Partners of Health. And I work for a private University. (I’m a professor at Harvard, that’s what I do for a living.) So, this is not an attack on the private sector of NGO -- after all, I represent an NGO. But, as NGO’s and non-State actors, we must believe in some basic social safety net to strengthen the public sector’s ability to provide basic services. This is a perfectly fine primary goal for an organization like Partners In Health.
Some people think of Rwanda as a place in which a sort-of neo-liberal economic policy is in place. But, if you look at the Rwanda budget, it is pretty shrunken in health care and education. Yes, there is strong encouragement from the private sector, including direct foreign investment. We need this in Haiti. The question is, do we provide this at the expense of any basic right of the population? The answer is: No. This is not in the interests of pragmatists.
Before the earthquake there was very high unemployment in Haiti, and relentless migration to the cities resulted. There was little investment in public work, safety or education. And so there was a perfect, terrible storm, when something as awful as the January 12th quake hit. Haiti has been terribly vulnerable to natural disasters for many decades, because it has been deforested because people need charcoal. And there is no charcoal, because there has been no significant investment in alternative energy sources. Haiti is not alone in that regard. But, as the recent complex chain of events shows us, you can be absolutely pragmatic and still say, ‘hey, we can put in place some basic systems to protect people from the worst.’
Having a safety net for health care is the ultimate in pragmatism. It is not ideological to say that people need a basic safety net. Same for education. It has been shown again and again that a girl’s education is the best way to promote child survival. What could be more pragmatic than equitable education?
DS: Some of your work has challenged epidemiologists, and the public health community, to look at the impact of economic and political policies on health, and focus less narrowly on individual risks for disease. You've also challenged anthropologists to go beyond cultural factors in explaining behaviors that put people at risk, and to investigate the political and economic context. In these ways, you've been pushing both these disciplines to stretch beyond where they have focused much of their attention over the last fifty years. Was this your intent? And do you think you've had an impact on the disciplines as a whole?
PF: That was my intent. It is difficult to measure impact. For the public health community or epidemiologists, there is always some kind of blinder on any methodology or any kind of disciplinary approach. For anthropologists and public health specialists to be blinded in this way is particularly offensive because it is our job to re-socialize our understandings of phenomena.
Again, going back to Haiti, there is an earth quake at 4.33 on January 12th. It is a natural disaster and also a social disaster. It is the job of some disciplines to work hard to make all of this clear. Why? Because understanding claims of causality, how one thing causes the other, is important to any convention. Going back to medical language, to get both the prognosis and the prescription right, you need an accurate diagnosis. This emerges from a comprehensive examination of the history of the illness -- and all the data that we have is laboratory data and modern biomedicine. The underpinning of that critique of my colleagues in public health and anthropology is that we are not going to get the diagnosis correct if we don’t have an historically deep, geographically broad, view. By geographically broad, I mean that if you are looking at epidemic disease you can’t focus your attention on one administrative unit. Usually in the 20th century nation state, epidemics don’t remain local. There is a lot in the book about epidemics. They never stay local. They always get out of prisons and hospitals, and out of one state and into another.
Parochialism about place, just like parochialism about time, is detrimental if we want a full understanding of big social medical questions presented in Haiti and elsewhere around the world.
Paul Farmer is Professor of Social Medicine and the Chair of the Global Health and Social Medicine at Harvard Medical School.
Diana Silver is an assistant professor of public health at New York University's Steinhardt School of Culture, Education and Human Development
Tags: Diana Silver, health care, JB, Author Talk, Paul Farmer
06/02/10
Former New York Times Supreme Court reporter Linda Greenhouse talks about Roe vs. Wade, partisan politics, and the future of abortion rights.
interviewed by Nancy Northup
Nancy Northup: What surprised you when you went back and looked at the documents that bring the debates before Roe vs. Wade to life?
Linda Greenhouse: I was surprised by how relatively late in the process of reform the women’s movement jumped in. I assumed the second-wave feminist movement initiated the cause of abortion reform. But that wasn’t the case. The initial impulse came from public health concerns and, to some degree from the elite of the legal profession. Feminists were on a parallel, but, different track. They focused on economic equality and empowerment. It wasn’t until Betty Friedan made the fabulous speech in Chicago in 1969—which we excerpt—that the feminists made an overt connection between economic empowerment and women’s need to control their reproductive lives.. The meaning of “abortion” changed significantly over time, and, resonated differently within different communities. This is key to understanding what occurred both before, and after, Roe. It seems obvious once you say it, but, it sort of jumps out from the materials and I don’t think that’s been a point of much analytical focus before.
NN: Can you say more about the ways in which abortion has been understood in different communities?
LG: Yes. At first, abortion was presented as a public health issue. Back alley, illegal abortions were a significant cause of death and injury. Here was really a medical problem that needed to be fixed. But, as the sixties went on the abortion issue intersected with the growing power of the women’s movement, the Equal Rights Amendment, the Nixon presidency and Nixon’s re-election effort in 1972, and, the concept of abortion got mixed up with other elements of the social upheaval taking place. People came to understand, not incorrectly, that a right to abortion makes it possible for women to be in the world in a very different way. The debate over abortion became much more freighted; it came to involve far more than a debate over a particular surgical procedure, or, even a debate over ending a pregnancy as such. It came to stand for what one thought of the roles of women.
NN: The book aims to recreate the public conversation from which Roe emerged. How much has that conversation changed during the last forty years?
LG: Inevitably, we see the pre-Roe period through the lens of Roe. For example, we see the conflict within religious communities in terms of the Catholic Church and its opposition to abortion, the resources and ability it has to enter the public conversation in a very robust way, and get the idea the Catholic Church led opposition from other faith-based communities. This wasn’t the case, however, in the pre-Roe period. Something that surprised us—and I don’t claim Reva Siegal, my author, and I discovered it, but it was news to us— was the discovery that other religious communities, for instance the Evangelical communities, did not share the Catholic Community’s implacable opposition to abortion under all circumstances. They were open to the notion of ‘therapeutic abortion’ and recognized circumstances in which abortion, although problematic, would be morally acceptable, and, should be legal. This is one interesting example of how current assumptions aren’t historically correct.
NN: You also trace the issues in terms of partisan politics.
LG: Yes. A Gallup poll conducted in the summer of 1972 while the Supreme Court was getting ready for the second argument in Roe, asked ‘do you believe that abortion should be a matter solely between the woman and her doctor?’ The largest affirmative responses came from Republicans, and by a margin, I think of 68 percent. (Democrats also said yes, but by a smaller margin.) Party realignments occurred later.
NN: Are there notable similarities between the pre-Roe debate and today’s public debate about abortion?
LG: We reprint some very powerful anti-abortion arguments including a fascinating little book called Handbook on Abortion. It was written, by Dr. Jack Wilkie and his wife, in the form of questions and answers about abortion and Wilkie’s arguments are the same arguments the right-to-life community has been making ever since. They are very familiar -- even though this little book predates the real hardening of the wine. Dr. Wilkie self-published the book but it quickly circulated, has been translated into dozens of languages, has become the bible of the anti-abortion movement, and, is strikingly familiar today.
NN: Let’s talk about Roe itself. Did the decision cause the subsequent conflict, or, was the decision merely a symbol that emerged from public conflict about abortion?
LG: Reva Siegel, my co-author, and I don’t buy the notion that the Court started everything. On the other hand, I mentioned earlier the Gallup poll that indicated wide acceptance of the reform of the old abortion laws. We don’t know what the Courts made of that or what the Justices expected. We know they expected some controversy, but we don’t think they had any notion that there would be so much controversy, certainly not lasting to this very day, thirty-seven years later. So as I say, it is an ambiguous story. When I started covering the Court in ’78, there were already several post-Roe challenges to various obstacles to abortion access on the Court’s docket. The Roe mentality seemed solid on the Court. It seemed unlikely any of these challenges would be of more than marginal interest. Few people then would have imagined we would still be living with the aftermath of all this today.
NN: Commentators like Jeffery Rosen of The New Republic, argue abortion rights as a policy position, but think it would have been better if the Supreme Court had declined to recognize a Constitutional protection for abortion rights. What do you think? Might we have had less contentiousness about abortion if the Supreme Court had just stayed out of it?
LG: It’s a theoretically appealing, but historically inaccurate idea. Did the Court think that its decision reflected national consensus? Did the Court misread the public? We don’t really know the answers to those very intriguing questions. The historical record is clear that our electoral politics are not going to accomplish what Roe vs. Wade accomplished.
NN: Who is the audience for your book and how would you like it to be used?
LG: Ideally people on both sides of the debate will learn something about where we are. We specifically hoped that the college-age population will read it in their American Studies classes or Women’s Studies classes. We hope to reach both a general audience and specific academic audience.
NN: In the forward, you and Professor Siegel say your personal view is that a woman should be free to decide for herself, whether and when to bear children. It has been two years since you left your post at The New York Times. Have you been able to write and speak on your own position on the issue as opposed to the neutral journalistic position that you had for so many years?
LG: Yes. Now I’m free to say anything because I don’t have to write a regular opinion column for the Times website. It’s a different professional relationship to issues that I find fascinating.
NN: Was it very hard -- during the thirty years you were covering the Court -- to maintain the objectivity that you needed to have, particularly when you covered subjects like the Court’s treatment of abortion rights?
LG: Not really. I was a daily journalist for forty years. There are tools of the trade that reporters learn to deploy. I always had definite issues on the abortion issue; in the book, I wanted to come clean on this. The book is not a work of advocacy. So, no, I didn’t find it that difficult. Actually, I had much less of an idea of what was the right answer with respect to many of the issues that came before the Court. The Court deals with an awful lot of hard questions on which very smart people have disagreed; I was sometimes quite grateful that I didn’t have to reach my own decision, rather just report what other people were saying.
NN: Thirty-seven years after Roe vs. Wade the abortion battle rages on in the courts and the legislatures and in the media. Is there an end in sight?
LG: It’s hard to see an end in sight. Given the current efforts of the anti-abortion community, for instance, to require women seeking abortion to view ultrasound images of the fetus, and so on. I was just in Florida the other day and the legislature passed such a law and the question was, would the Governor veto it? There always seems to be something new to latch onto. And of course many of these efforts in the States are efforts not so much to change the hearts and minds of the State population, but to find a vehicle that the anti-abortion side might ride to the Supreme Court in the hopes the Court might take a different view of the matter. This is a long way of saying, no I don’t think the issue is going to go away.
NN: As a close Court observer, how far do you think the current Supreme Court might be willing to go in terms of restricting abortion rights?
LG: Three are four Justices who would uphold pretty much any restriction that comes across their screen. Chief Justice Roberts, Justice Alito, Justice Scalia, and Justice Thomas. So, that leaves us with a question mark about Justice Kennedy. Based on his opinion in Casey vs. Planned Parenthood in 1992, I think Justice Kennedy seems to be committed to the notion that there is a core right to abortion. I don’t see him changing his position on that. It is just a question of what he sees as an undue burden and whether or not that strikes other people as an undue or not. That is the unanswered question here.
Of course, we haven’t heard from Justice Sotomayor or from Solicitor General Kagan on this issue, but I’m assuming that their views will be much like the Justices that they are replacing. So, I’m counting them as the four on the other side, with Justice Kennedy in the middle.
NN: Very good. Thank you and Professor Siegel for putting together these materials. They bring to vivid life the public conversation that shaped debate before Roe vs. Wade. And as someone who works on this issue 24/7, I was surprised by much of what I read when I revisited these arguments and debates. The book is going to be an incredibly important contribution to the debate as both a social- and constitutional matter.
Linda Greenhouse, a Pulitzer Prize winning journalist, covered the Supreme Court for the New York Times for many years and now teaches at Yale.
Nancy Northup is the President of the Center for Reproductive Rights, a global human rights organization that uses constitutional and international law to secure women's reproductive freedom.
Tags: Linda Greenhouse, Nancy Northup, Roe v. Wade, Supreme Court, Author Talk
04/29/10
20 years after his smash best-seller, Presumed Innocent, Scott Turow is back. The author – a practicing lawyer and former U.S. Attorney – talks to Just Books about innocence, guilt, and the novel.
interviewed by Susan Lehman
Who is more likely to find justice: people in real court rooms where you've tried cases for 20 years, or, the characters in your novels?
Scott Turow: Different justice I would say. Our court system can rarely deal with the emotional life of everyone involved, while a novel surely can. So literary justice may seem more satisfying.
SL: DNA evidence plays a central role in Innocent. How do advances in forensic evidence affect the criminal justice process?
ST: Not as much as people think. DNA is a great tool that adds more certainty in given cases. But there is not genetic evidence in most criminal cases.
SL: Innocent’s protagonist, Rusty Sabich, is a candidate for State Supreme Court Judge. And the coming election plays a slightly warping role in his decision making. Do elections taint the judicial process and the quality of individual judge’s decision -- or is Rusty’s candidacy one of many details on a fictional resume?
ST: I have long supported merit selection of judges. Politics and the law are rarely a good mix. how can judges fulfill their responsibility to protect the rights of political minorities, when their survival on the Bench depends on pleasing the majority?
SL: Your terrifically fabulous character, Judge Basil Yee, can hardly speak English but keeps a firm grasp on essential truth. In describing his own turn as a lawyer he says he reminded himself “Case not about me. About witnesses. About victim.” And the jury always gets it right: Yee win his cases. Do you think juries get it right and – more often than not – reach the right conclusions?
ST: yes, but their reasoning is often frightening to lawyers
SL: In your fiction, “innocence” has different – and sometimes conflicting -- moral and legal dimensions. (Characters are sometimes guilty in fact, though legally innocent.) Is this also true in dramas that play out in real court rooms?
ST: Well, there isn't a separate moral plane in the courtroom. Scumbags go free and basically good guys get convicted, but those facts are without much consequence in the law.
SL: You said once that of the many historical events that occurred during your life, Martin Luther King’s assassination was the most consequential. Why?
ST: King's death changed race relations for decades and vindicated impulses toward black separatism. Dr. King was also emerging as an important political leader in his own right, who could have forged the Obama coalition decades before.
SL: Knowing what you know about Barack Obama – who you’ve known since his early days in Chicago – what criminal justice reform do you think he would be most likely to push for during his Administration?
ST: Frankly, any such efforts are likely to await a second term and probably will meet resistance in Congress. As a pure guess, I imagine the President, left on his own, might soften the most draconian aspects of our drug laws.
SL: Can you talk a little bit about the relation between law and literature in your life. Is writing more fun than practicing law? More orderly? A rest from life-and-death drama of the courtroom?
ST: Both can be enormous fun, and a pain in the ass. There is more exhilaration in writing and more drudgery in the law, but they each have their shares of both qualities. My dream from childhood was to be a novelist, so there is a deep satisfaction in that life.
SL: What do you read for fun?
ST: Serious contemporary fiction, currently Wolf Hall by Hilary Mantel.
SL: Your band, Rock Bottom Remainders – whose members include writers Dave Barry, Mitch Albom and Amy Tan – scheduled a concert to benefit Haitian relief efforts. Did justice play a role in the band's decision to play for the benefit of the Haiti?
ST: We try to aid literacy efforts since readers have made us who we are. (I mean as writers, not lousy musicians). World Vision is committed, among other things, to rebuilding libraries in Haiti.
Tags: Author Talk
04/22/10
As Chief Counter-Terror Advisor on the National Security Council, Richard A. Clarke warned the Bush Administration about danger of imminent Al Qaeda attack. In his new book, Cyberwar: The Next Threat to National Security and What to do About it, Clarke and co-author Robert Knake provide a scary picture of America’s current vulnerability – to cyber attack.
Author and Wired editor Nicholas Thompson talks to Clarke about cyber-attack and how countermeasures might weight the delicate balance between national security and liberty interests.
Nicholas Thompson: Jumping right in-- you were famously prescient about the dangers of Al Qaeda in early 2001. Compared to your concerns then, how worried are you now about cyberattacks?
Richard Clarke: It’s difficult to compare the two. What we knew, then, about Al Qaeda was that they were trying to attack us. What we know now is that there are nations putting cyber weapons into inventory.
That doesn’t mean there will be war. Nations don’t go to war just because they have weapons. So I don’t worry about that happening immediately. What is happening is economic espionage, and that is harming our economic growth right now.
NT: But 65 pages into your book, you lay out an apocalyptic scenario: in the hypothetical war you describe, planes fall out of the sky, power grids collapse, gas pipelines explode….
RC: It would happen if there was a nation with which we were at war. It is conceivable that this could happen with North Korea. They are working on this. They don’t have much invested in the international system, and, they don’t have much to lose. It could happen if we had a conflict with Iran. Let’s say Israel bombs Iran’s nuclear facilities. That could then turn into a conflict that includes cyberwar.
NT: Iran could get into our power grids?
RC: They would be able to do a lot of that. In cyberwar, you don’t have to be a big nation, and you don’t have to spend a lot of money. You never really know the full extent of a nation’s capabilities until they use them.
NT: In your book, you argue that companies need to be much more vigilant and aggressive in monitoring their networks. In particular, you suggest that they should use Deep Packet Inspection to examine the traffic crossing their networks do see if it could be part of a cyber attack. How do you do that without asking people to give up their rights to privacy?
RC: You don’t have the government doing Deep Packet Inspection on the networks. You have the companies do it themselves. And the government is one step removed. Also, DPI is not about looking at content; it’s about looking for patterns.
NT: Are there any privacy rights that people should give up?
RC: The U.S. government, in general, has a cavalier attitude toward privacy violations. When it comes to cyberwar, what you have to worry about is “spearfishing” (where hackers target specific individuals and trick them into giving up access to their networks and systems). We see China and others doing this, and using social engineering to get into people accounts. That’s how the recent attack on Google occurred. It’s probably how other attacks have happened.
NT: You state in your book that you were part of the government that first rejected an international cyber arms treaty. And we still don’t have one, mainly because of US reluctance to sign one. Do we need to do so?
RC: I was afraid at the time that verification is hard in this area. But now there are some baby steps that we could take, and there are some things that we could do that would give us stability, like signing a treaty that prevents cyber attacks on infrastructure. We also need to set up a cyber risk reduction center.
NT: You are very critical of Microsoft in the book, and you say that their financial interests have turned them into a lobby against sensible cyber reform. Who else is guilty of this?
RC: Companies like Verizon care mainly about preventing government regulation. The power companies also lobby on this. They are very effective lobbyists.
NT: Could this same logic be turned against you? You run a consulting group that gets more money, the more afraid we are of cyberwar. Should we doubt your motives?
RC: No. Last year about 95% of our revenue was non cyber-related.
NT: Thank you for your time and for writing such a fascinating book.
Nicholas Thompson is author of The Hawk and the Dove: Paul Nitze, George Kennan and the History of the Cold War.
Tags: National Security, Nick Thompson, Richard Clarke, Author Talk
04/22/10
The Student Non-Violent Coordinating Committee (SNCC) celebrated its 50th reunion last weekend. SNCC played a major role in the sit-ins, freedom rides, voter registration drives and marches that defined the American Civil Rights movement.
Pulitzer-Prize winning historian Taylor Branch says SNCC’s role in shaping America is as essential as that of the Founding Fathers. He reports from the conference.
interviewed by Susan Lehman
Susan Lehman: John Lewis, Julian Bond, Charles Cobb, Ruby Sales, Dave Dennis and other SNCC veterans gathered at Shaw University last weekend. What most surprised you about the 50th Anniversary conference?
Taylor Branch: What was most surprising was how many people showed up. SNCC people are notoriously argumentative. They are dying out. They are scattered all over the place. And yet, I don’t know the precise number, but it seemed to me there were more than a thousand people there.
SL: How do you explain the big turnout?
TB: There is a hunger for what is fundamental. A lot of people think our national politics is out of whack. SNCC addressed problems that no one thought could be solved, and risked their lives doing it. They know they deserve credit for this. And I think they are alarmed about what is happening in the country. Apart from all this, there was probably a sense that for a lot of them, this is their last shot to get together with people they were bosom buddies with 50 years ago. If it’s a 50th, and you miss it, you can’t plausibly say, “Hmm, I’ll skip this one and go to the 60th!
SL: How would you characterize SNCC’s legacy?
TB: SNCC played a far larger and more positive role in American history than is commonly appreciated. Correctly viewed -- and historically viewed -- the SNCC people shoved into motion an awful lot of freedoms that changed the country in fundamental ways we take for granted today. This extends far beyond eliminating segregation.
SNCC helped end -- literally -- the spirit of terror in a whole region of the country where people were afraid in a meeting room or a living room, or a downtown place that had any mixed presence. Doing so made people’s hands sweat. Because violence was ever present. People were getting beaten up, killed and insulted and there was a lot of hatred running through the land. SNCC’s witness eliminated this and also changed the partisan structure of politics in the whole country.
By winning the right to vote for black people, SNCC helped create the two-party South. It also helped create – or stimulate – prosperity in the South, which was impossible while the South was gnarled up enforcing segregation. The region was not fit for major-league sports teams, then, as soon as segregation was eliminated, sports teams – the Atlanta Braves and Miami Dolphins teams sprouted up, and the Sun Belt was born. There were all kinds of blessings for lots of people. And not just black and white people, but for women and the disabled. The women’s movement and a whole host of movements that followed came out of a fundamental struggle over questions about what equal citizenship means, what the role of politics is, and the responsibility of every student.
Properly viewed – and history will one day see it this way – the Civil Rights movement in general, and SNCC people as the young shock troops, playing the same role as the Founding Fathers did. They confronted systems of hierarchy and oppression, and set into motion a new politics of equal citizenship that benefited everybody.
On the uses of nonviolence
SL: What can be learned from SNCC’s successes in eliminating racial desegregation?
TB: The overwhelming lesson is that they grounded themselves in nonviolence and in the notion that people will respond to the moral values of equal citizenship and democracy and basic religious morality, if it’s dramatized sufficiently. And they discovered a kind of nuclear energy in nonviolent witness from the sit-ins to the voting rights era. That’s a pretty big discovery.
SL: Is there anything in contemporary American political life that suggests nonviolence could be as powerful a force now as it was during the Civil Rights Movement?
TB: All political agitation is a form of nonviolence and political debate will win out in the end. But I don’t see any contagious movements of nonviolence. One of my biggest complaints when I got to universities is that no one is studying nonviolence. Here you had a movement that came out from the weakest and most invisible segment of society in civil rights; it was a movement that adopted nonviolence and really shoved society -- against its own will -- in a direction of profound and beneficial reform. Yet nonviolence isn’t studied. It’s a travesty that you can go on university campuses in the politics department and find people writing dissertations on minor attack ads in a campaign but not studying something as sweeping as the changes eight-year-old girls wrought on the national psyche by walking in front of dogs and fire hoses. This is a pretty remarkable thing. We are the oldest experimental democracy, and whole idea of democracy is to settle disagreements by vote instead of the sword. The vote -- as Dr. King used to say -- is an act of nonviolence. It’s not a totally marginal issue.
SL: Speaking of voting and marginalization -- If patterns of felony disenfranchisement persist, we’ll have a higher level of disenfranchisement among African Americans in a few years, than we did at the time the Voting Rights Act passed.
TB: This is a political issue that needs to be addressed. Certainly the direction of American history from the inception has been to widen the franchise, not to narrow it. If we are actually narrowing it in a significant or politically important way, that is a turn backwards in history and we should be very skeptical and watchful about that.
SL: Attorney General Eric Holder delivered the keynote address at the SNCC conference. What role did government play in SNCC’s understanding of the path to justice?
TB: This was an issue of tension between SNCC and Dr. King. Dr. King always tried to knit together the pressure from the movement with results through politics. He was always looking for way to outlaw segregation and secure voting rights, legally. The legal part mattered. King tried to keep the movement together, and, at the same time, he negotiated with all three branches of government to move towards a voting rights law. For King, the whole purpose of movement was to gain some footholds in law. SNCC started that way, but was so disillusioned by the slow performance of the federal government -- and the fact that the federal government that had been so slow to move on Civil Rights was that it was starting the war in Vietnam -- that they disregarded the legal aspect. As an historical matter, I think this is why King lasted longer. SNCC came apart when it scorned the delicate task of keeping movement going and getting a political response.
SL: Was SNCC a racially-mixed organization?
TB: It was almost entirely black from 1960 – 1964. Those were important years. But then when they made the enormously controversial and philosophically fraught decision to bring 600 white college students down for freedom summer, a lot of them stayed on, and to a large degree threatened to swamp SNCC in inter-racialism. It was not smooth. Part of the inner struggle of SNCC to this day was they professed to be above the race issue, but in the crucible of risk and trying to work together across unfamiliar cultures, there was a lot of friction. It was controversial at this reunion to use the symbol of white and black hands clasped, which was SNCC’s original symbol. The symbol was anachronistic. In the end, SNCC ended up being an all-black organization. The reunion was about 90% black.
SL: You have written about the way history and myth-making impede progress. Could you say a bit about how this happens?
TB: Race is a powerful engine of dangerous myth in American history. To some degree, it is today: a lot of the Tea Party animus is undigested 1960’s resentment that people are called upon to act outside their comfort level with people from different backgrounds and races, and that government is forcing them to do this. And this is why they don’t like the government. And because it is subliminal and emotional, it’s not ever said directly. A fantasy is being fed to them: that if it weren’t for the government, they could be totally comfortable, would be wealthy and not have problems. It has a lot of a success-church mythology sprinkled with an awful lot of federal-government-is-the-instrument-of-scary-minorities-and-foreigners, and to that degree that kind of mythology. Some of those same people are totally blind to all the benefits – even to the white southerners – that the Civil Rights movement brought to them.
The Future
SL: Harry Belafonte said, during the speech he gave at the conference, that "no one should leave without a passionate idea about what to do now." What ideas or issues galvanized most passion?
TB: The issue of education and non-functional schools, particularly in cities was a big issue. Bob Moses, one of the most powerful forces in SNCC, has been working on education issues for years. There was a lot of interest in prisons and the burgeoning prison population. There are two million people in jail; reasons for this has something do with sentencing disparities of sentencing, and the effect of the drug war in imprisoning people for nonviolent crime. The two issues of prison and youth education dovetailed with some people who were upset about fact that younger and younger kids, particularly black kids, are incarcerated right out of school. A lot of people were interested in peace issues and in the question of why we are continually fighting wars, and, the question of whether there is a correlation between our having government’s tilt towards increased executive power and the national security state, and the fact that not only have we been involved in more long-standing wars, but also that we are losing them.
When I saw Eric Holder, I felt badly that people like myself and SNCC didn’t applaud him and step up to offer support when he announced plans to try 9/11 people in civilian courts. This was to me, in a SNCC way that has to do with questions about what fundamental democracy is, a courageous step. Essentially Holder was saying: “We are not afraid to test our values in the open by putting our case there and allowing defense to have its case, and that is what the American system is about. And to fear that this might fail or be dangerous is a step backward from our values and a surrender to those who equate democracy with militarization.”
SL: The Attorney General hasn’t officially retreated from his announced decision to try the 9/11 case in civilian court. So it’s not too late to stand up and voice support.
TB: You’re right. I came out of the Holder speech thinking that if SNCC wanted to write him a letter I’d do what I could, and if anyone announced a march in support of that decision, I will try to attend.
SL: After four days what do you think was the ratio, amongst conference-goers, of hope to hopelessness or just fatigue?
TB: I didn’t sense a lot of hopelessness. I sensed something more like determination and sprit. There were a lot of people who said, “When we started SNCC, there wasn’t a lot of conscious talk about how that this was going to change the South. The first thought was we couldn’t put up with it any more and that we simply wanted to do something that would show we disagreed. And not necessarily because we predicted it would lead to the kind of change it did.” People started this because they wanted to make a witness or because something welled up in them. That’s what a movement is. It wasn’t calculated. Something reminiscent of that spirit was present over the weekend.
SL: Last question: you used your panel to talk about how SNCC doesn’t take sufficient credit for the profound changes it brought. What difference does it make if SNCC -- and its accomplishments -- are fully understood?
TB: SNCC doesn’t claim the breadth of its impact. And this hurts not only SNCC’s own reputation, but contemporary politics as well. It leaves a gap. People should be a lot more optimistic about what you can achieve in politics than they are today. The Pew organization just released a study that says a huge percentage of people disparage government and say it is worthless and you can’t do anything about it. If everyone had a true appreciation of breadth of changes spawned by the Civil Rights movement in general -- and by SNCC in particular -- it would be hard to justify that level of cynicism and opposition.
Taylor Branch is the author of, among many other books, the Pulitzer Prize-winning Parting the Waters.
Tags: children, civil rights, democracy, justice, Taylor Branch, Author Talk
04/22/10
Linda Fairstein’s Alexandra Cooper novels draw heavily from her 20+ years as Chief of the Sex Crimes Unit in the Manhattan District Attorney’s office. Hell Gate, her latest legal thriller, is a vibrant concoction that involves human trafficking victims and a political sex scandal.
Fairstein talks about Hell Gate, law, sex crime and writing.
Interviewed by Jeanine Plant-Chirlin
JPC: Alex Cooper is an Assistant District Attorney in the Manhattan District Attorney’s office. And Hell Gate offers a good look at the day-to-day drama of courtroom life. What can lawyers learn from Alex?
Linda Fairstein: I’d like to think they can see her passion for her work -- which is a big help in any legal practice. She is interested in and excited by the challenges.
And you can see the collegiality she has with lawyers who work on the trafficking case, and with cops on the investigation. This is something that may not resonate for young lawyers in firms as much as it does for lawyers who work in public service jobs. I love to show through the books the collegiality of the work. It’s a pleasure to brainstorm cases when you’re stuck on a concept, an idea, a piece of evidence, or the direction of an investigation. There was a wonderful feeling when I was in the Manhattan D.A.’s office, that there was always someone to cover your back and think things through with you. The collegiality of the practice was important to me as a young lawyer.
JPC: You worked in the D.A.’s office for almost 30 years, heading the sex-crimes unit from 1976 to 2002. And human trafficking is one theme in Hell Gate. What changes to the law have you seen over the years?
LF: When I started to practice law in 1972, there was still a very archaic requirement called corroboration in New York. That meant if a victim reporting a sexual assault -- the only crime it applied to -- was incompetent, that victim could not testify in court.
Then before I started, there was a big The New York Times Sunday magazine article by a writer named Martha Lear, about rape. It said that more than a 1,000 men were arrested for rape in New York City, and 18 of them were convicted that year. That is the climate I entered. Sadly, it was not the criminal justice system that effected change. It was the feminist movement in the 1960s. And many victims of violence had no access to the system, and lawyers and judges had to re-examine.
Our office helped draft and promulgate legislation for the elimination of corroboration, and I helped lobby for legislative reform to eliminate a law saying if the attacker was armed, a woman had to resist the rape to the utmost.
1986 was my first introduction to DNA. Then the FBI had the only laboratory in the country that could use it. We didn’t have city labs as we do now. I first tried to use DNA to connect the killer to the murder weapon in homicide case. The jury never heard the evidence. It wasn’t reliable.
Those were the first legal and scientific changes that were so extraordinary, coupled with policy changes and investigative changes—those were things we continued to fine-tune throughout the 1990s.
JPC: Could you talk about the process of prosecutorial decision-making involved in your work in the sex crimes unit; I think many imagine this area of the law lends itself, more maybe than other areas, to he-said/she-said conflicts?
LF: I have always rejected the argument that these cases are he-said/she-said. That is very much a part of my training of lawyers. You need to take apart every minute of the encounter. For instance, take a woman who says she spent a four-hour evening together with a man she is charging with rape. “I was introduced to this guy by a friend. We went to dinner together. He took me to my apartment and raped me.” That is all you need to charge someone with first-degree rape. But the four hours is what you analyze; you sit with that witness and you take apart what he said and what she said and what he did and what she did. Then you look at how every step unfolded -- that includes jumping ahead in greater detail, asking what they had to drink, what conversations they had, how the clothes came off, and was there foreplay involved before there was force. This demystifies the language and the acts of the account and encounter.
One of my very first cases in 1976 involved a woman who was a secretary at a then-major law firm, which no longer exists, who had reported a rape in the office, committed, she said, by a senior partner. Before the police went to arrest him -- he was a very prominent lawyer -- they brought the case to me and we began to take her story apart.
Obviously, that kind of thing can happen in an office late at night, but it is unusual. After three or four visits with her, her story began to unravel. She finally admitted that she and the partner had had an affair. He promised to leave his wife who lived in Westchester, and leave behind the house and the boat and the car. Right before Christmas, he broke up with the secretary and she decided the best way to get back at him was to charge him with rape, which would ruin him professionally, ruin him at home, etc., etc. So she had filed a false report.
I remember sitting in my office, two days before Christmas, when the detective and I confronted her with records of the two having travelled together. When he would go do depositions in Florida, she went with him. She went and stayed in the hotel room. She left all of this out of her story about their relationship. Then she broke down and admitted the story, and told us why she’d said what she did.
The irony was that we wanted to charge her with filing a false report, but the lawyer begged us not to, because he said he would lose again. Either way, he would have to be the complaining witness and the affair would become public in a courtroom. We referred her to psychiatric help.
In acquaintance and date rape cases, you exonerate by getting the complete story. In ID cases, DNA has been the critical tool in exonerating. Before you even think about arresting somebody, you can get the DNA result back in 24 hours. You don’t have to put somebody in handcuffs if they didn’t commit the crime.
I think so many people outside the law mistakenly think the job of the prosecutor is to convict and try people. One of the great virtues of working for Bob Morgenthau was being able to use the prosecutorial power to get cases out of the system that didn’t belong there, before people were charged. My colleagues and I did that all the time.
JPC: Do you have more opportunity to influence public opinion on sex crimes as a writer or a lawyer?
LF: Crime novels or murder mysteries reach a hugely broad audience. I’ll be obnoxious for a moment. Hell Gate is Number 9 on The New York Times Bestsellers List and it is the ninth of my twelve novels to debut on the list. That’s hugely impactful. You get an entirely different audience. You get people who read murder mysteries and watch “Law and Order” on TV. And they are not intellectuals, and, maybe they have never been called for jury duty, but they come to these books and these events because the books are meant to entertain. But I also write to educate, gently, about these issues. I hate crime novels that are just car chases and shoot-outs, just action. I hope when people read my book, they’ll come away knowing a little bit about trafficking, how serious an issue it is, how the system does and doesn’t handle it appropriately.
Practicing law as a prosecutor committed to women’s issues, I had more power than many. But I reach a far greater range of people with the books. And it is really very exciting to me to get the word out about criminal justice. It is fiction, but my piece of it is procedurally accurate.
Tags: justice, Linda Fairstein, Author Talk
04/02/10
“The legal dimension of Obama -- and however modest, his career as a law professor -- is an essential part of understanding who he is.” – David Remnick
Just Books: The arc of the moral universe is long but bends towards justice. It’s one of Obama’s favorite Martin Luther King statements. How do you think law figures into his understanding the moral universe and the way it moves towards justice?
David Remnick: When we think of the cartoon of Obama’s past, during the Presidential campaign, sometimes the emphasis is overmuch on the three years he spent as a community organizer. And on Saul Alinsky. And the South Side. As if there was something more romantic about creating an image of the past out of these. But, a very, very big part of who Obama is, the way he thinks, his bearing in the world, comes from the fact that after he finishes being a community organizer and finds deep frustrations in that and so goes to law school. For some people, law school is a way of getting a high paying job, a way to advance in the corporate world. In his case, there was a measure of idealism and desire to make law an instrument to do what he could not do as an organizer. The legal dimension of Obama -- and then, however modest his career as a law professor -- is a very important part of understanding who he is.
JB: And yet, his career as a practicing lawyer was very short. He practiced very briefly and then went off to lead Project Vote and to finish his book.
DR: I remember when my parents were trying to convince me – unsuccessfully – to go to law school, they said, “get a law degree, you can do anything!” Remember, Obama says in his autobiography, about going to law school, “I would learn about interest rates, corporate mergers, the legislative process, about the way businesses and banks were put together; how real estate ventures succeeded of failed. I would learn power’s currency in all its intricacy and detail, knowledge that would have compromised me before coming to Chicago, but that I could now bring back to where it was needed, back to Roseland, back to Altgeld; bring it back like Promethean fire.” In other words, he was going to law school, to acquire -- in very idealistic terms -- instruments to be more powerful and more capable of doing what he was interested in doing.
JB: Then of course, you quote Obama as saying that he found the study of law “disappointing at times, a matter of applying narrow rules and arcane procedure to an uncooperative reality; a sort of glorified accounting that serves to regulate the affairs of those who have power!”
DR: At law school, some courses were dull; some had a sense of adventure that he appreciated. He studied with Roberto Unger who is a real radical. Obama took two courses with Unger, not one. This is a guy who is in the current Brazilian government and very much to the left. That’s not Obama’s politics, but he was certainly taken up with and fascinated by anything that was out of ordinary contracts and all the rest. Obviously constitutional law was where he lived.
JB: You mention a lot of mentors that Obama had at Harvard. Roberto Unger. Laurence Tribe. Martha Minow. Charles Ogletree. Is there a quality of mind that appealed to Obama?
DR: The primary mentor there is Larry Tribe. And to some degree Martha Minow. These are liberals. Martha is more theoretical and Larry Tribe is more directly involved in constitutional law, and, is probably one of the very best constitutional law and law historians we’ve got. Obama was interested in the radicals, in the Critical Legal Studies people. He was interested, to some degree, in the whole Derek Bell drama, but that isn’t where he lived. That wasn’t his main focus of interest.
JB: His main focus was on Constitutional issues?
DR: Yes. Especially Constitutional issues as they related to racial justice and related to a series of things having to do with civil liberties and equal protection.
JB: Can you talk about what it meant that Obama was the first African-American elected to be editor of the Harvard Law Review?
DR: On a personal level, it meant everything. Here is a guy who was a mediocre high school student in a hotsy-totsy prep school in Hawaii. He was a pretty good, at best, college student at Occidental and Columbia. He was not a break out star. He got into Harvard Law, I think partly, and, I don’t know this for certain, but the admissions people were impressed by his three years as an organizer as well as his academic record. For him, at an institution where everyone thinks they are going to be President of the United States or the head of a corporation or something -- For him to emerge as the elect of the elect, to be the first African-American editor of the Harvard Law Review and to be so young and to be interviewed by The New York Times and every other press organ, to be a first. This gave him the idea that his ambition and his horizons were limitless. That is a real gift.
JB: A colleague read the book and said, “Gosh! This guy was not qualified to be President.” Your book dramatizes how very accelerated was Obama’s dash from the Illinois state legislature to the White House.
DR: It was pretty accelerated. But Abraham Lincoln’s dash to the White House did not have its measure of acceleration. We never know, do we? People come in to the White House after many years in the Senate or the House of Representatives or the Governor’s Office and they turn out to be disastrous. We just don’t know. Was there a leap of faith involved in the fervent support for Obama? You bet. Some of it had to do with the fact that there was such disenchantment – not only with the Bush administration as a predecessor -- but also with the saga, the heavy history Hillary Clinton brought to her campaign. And, by the way, barely lost, so there was a lot of division in the Democratic party.
JB: Okay, but what does it say about the Presidency that someone with as little political experience as Obama had not only makes it into office but may turn out to be an awfully good President? Have we collectively misunderstood the qualifications for Presidential office?
DR: It can’t just be aptitude. Otherwise we’d just put the person in the Presidency who has the highest SAT score. There is some combination of accomplishment, character, intelligence, political intelligence, and good fortune, political fortune. With Obama, many of the skills he has are suited to that office. A lot of the people around him in the Senate when he was deciding to run for Presidency so soon, said to him, “Look at John Kerry, and at any other number of Senators. The longer they stay around here, the more votes they cast, the more compromises they make, the more hidebound and Senatorial they get -- and it hurts them. So that was part of the calculus. That, and the disastrous Bush administration, that and the fact that there were no incumbents or vice presidents in the race.
JB: You talk, in the book, about the academic mentors and the civil rights leaders who inspired Obama. Were there practicing lawyers who were role models?
DR: Judd Miner. Without a doubt, his model in Chicago was Judd Miner. Remember he didn’t practice much law. But his partner, Judd Miner [a liberal advocate who had been Harold Washington’s corporation counsel] was very close to him, hired him and served as a kind of model who did good. And modestly well. Also people on the University of Chicago faculty. Cass Sunstein is close to him.
JB: When you look at Obama and the kind of leader he is, are there elements of his mind or character that strike you as lawyerly?
DR: I’m not a lawyer. My impression of lawyerly may be more cartoonish than you like. What is always said of him is that his habit of mind, in terms of making decisions, is that he has a kind of aggressive listening. He is very, very intent on the deliberative and quiet intake of points of view, whether its opposing points of views on the economy and Afghanistan or all the big issues he’s got to deal with. And his demeanor is pretty lawyerly. It’s analytical. Despite churchly rhetoric that gets into his campaign speeches sometimes, this is a very analytic guy. He is not a hot personality He is a pretty cool one. If anything that foreign leaders complain about him – and not just Bebe Netanyu, but lots of leaders – complain that he is not Clintonian in his embrace. He is distant. Diffident.
JB: Leaders complain about this? They want more heat?
DR: They want him to show the love!
JB: How do you understand Obama differently than you did before you began writing this book?
DR: A number of ways. You commented on experience. No doubt that on paper, he is one of the less experienced, in résumé terms, to ascend to the Presidency. What is his appeal? I was interested not only in understanding his story in a biographical sense, but in understanding his understanding of his own story, and the way he tells it. Obama does something unique in American presidential politics: he writes a memoir before becoming a politician. This story telling, this understanding of his own story, his repeating of it and retailing of it, in the book and the way it becomes a part of political culture, in speeches and interviews and the rest, is very, very important,. It is important in any number of levels. One is the way he universalizes his story. He becomes the guy who can straddle all races, creeds, and points of view. He is the guy who is – forgive me – the bridge, who thinks that ideological division is almost unnecessary, the one who thinks that in fact that evangelicals should become part of the Democratic Party. That is his habit of mind. That’s his is own self-mythmaking. Some is strong. Some may be dubious. But that is very, very much part of his appeal, who he is, and how he projects himself.
JB: This comes across in the book. In fact, it seems you not only documented his story, you re-enforced it.
DR: I hope so. It’s why I spent the whole chapter – I pause in the middle of the narrative when he publishes a book – and sort through the book, in terms of, what is this book? This book comes in a long history of African-American autobiography. It presents a speaker looking for parents, identity, community, purpose. That’s what that Obama’s book is about. In many ways, there are links in that book to Frederick Douglass, Malcolm X, and to a whole literature of African-American autobiography, which is probably the strongest genre of all in African-American literature. It isn’t just by chance that that book had such a powerful effect on Obama, Obama’s career and Obama’s self projection as a politician.
JB: Can we talk about mechanics of writing this book? How could you edit a weekly magazine, read so much history, travel to Chicago, Hawaii, interview hundreds of people, and put it all together.
DR: I have an indulgent family and terrible capacity for coffee. Do you know the Yiddish word: Sitzfleisch? I have some of that. And I’ve only done it once in twelve years of being the editor of the magazine, so maybe it was stored up energy. I don’t know. I didn’t have researchers. It wasn’t like Santa’s workshop.
JB: Was Obama interested in the project?
DR: I think Obama has other things on his mind. I spent some time with him. That’s not the key to the book. Interviews with heads of state, in my experience – whether Gorbachev or Obama – once they are in office, they are very, very careful, if they are any good. Only a very sloppy head of state gives what journalists call a “good interview.” Obama had given zillions of interviews. To run for president is nothing if not a self-revealing process. I hope I give due credit in acknowledgments, and in the text, to others who banged on that door before.
Tags: David Remnick, Executive Power, Harvard Law Review, law school, Presidents, Barack Obama, Author Talk
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