Just Books
democracy
08/05/10
by Laurence Tribe
My long life in the relatively quiet groves of academe, in the tree-lined streets of Cambridge, Massachusetts, was a calm one compared to life inside the Beltway. The perspective from that privileged perch was shattered when I began to see the broader view from inside the Justice Department, a view that reaches into every nook and cranny of our country. In my new job as Senior Counselor for Access to Justice, I have come face to face with the anxiety and desperation of ordinary citizens, who look to our legal system for their fair share of decent treatment.
Only five months into the job, I still view with awe the sign over the door to my office that reads, “Access to Justice.” More than a few folks who have come to visit have paused to have their pictures taken – not with me, mind you, but with that sign. But even after these few months, my staff and I already sense the danger of unrealistic expectations. We worry, as do many expert observers, that the system is too badly broken in too many ways to be susceptible to any “quick fix,” our state and federal budgets too strained to provide the resources so desperately needed, injustice too deeply woven into the system’s very structure for piecemeal reforms to make much of a dent. Or is it?
Ours is supposed to be a system that levels the playing field by meting out justice without regard to wealth or class or race, a system that lives up to the promise emblazoned in marble on our Supreme Court, “EQUAL JUSTICE UNDER LAW.” But as we know all too well, far too many of our citizens find instead a system in which the deck is stacked in favor of those who already have the most: in favor of the wealthy and against those already disadvantaged or victimized by the more powerful. There’s no reason to mince words: Not only the poor but members of the shrinking middle class find a system that is confusing, difficult to navigate, challenging to the point of inaccessibility for anybody who can’t afford the best lawyers, and ridiculously expensive for those in a position to pay the going rate.
Consider the Burger family in Michigan, a state that permits non-judicial foreclosure. The Burgers bought a four-bedroom bungalow in 1997 for just under $39,000. In January 2009, they inadvertently sent a money order that was 7 cents short of what they owed, and they were late making February’s payment as well. They caught up by April, which was amazing considering that they lost their 10-month-old daughter in a household accident that same month. According to the family, the bank sought to foreclose anyway, giving them a choice: Pay $8,390 to reinstate the mortgage or lose their home. The Burgers didn’t have the money, couldn’t afford a lawyer, and given Michigan’s laws weren’t afforded any court intervention or oversight, so they lost the only house that their four living children, all 12 years old and younger, had ever known.
But the unredeemed imbalance of power and wealth are not the only viruses infecting our legal system. Equally detrimental, though less visible, is the hydra-headed monster of too many people to be served effectively and – for lack of a better word to describe it – the punitive urge, an appetite for imprisonment that ignores the veritable mountain of evidence which shows that alternatives to incarceration are often more effective at reducing recidivism--while also less costly. All too often, the systems that rely on lengthy incarceration as the only available criminal sanction suffer from crushing caseloads and an inability or, I hate to say, unwillingness to provide the legal assistance needed to provide meaningful, adequate defense. Though neither of these forces necessarily originates from any ill intent, their combination creates waste, havoc, and confusion and leaves the system weakened and the participants on both sides of the bench disillusioned and discouraged.
Nobody who works within the legal system enjoys confronting these problems – they cast a dark shadow over a system in which we deeply believe and to which we have devoted our careers. But confront them we must if we are to combat them and redress their pernicious effects. More than 95 percent of all cases in this country are filed in state courts. Just to put things into perspective, it helps to recall that slightly under 280,000 civil cases of all kinds were commenced in federal district courts in 2007 – compared to nearly 18 million civil cases in the courts of our 50 states. The federal system saw over 66,000 new criminal cases filed in 2007, a substantial number to be sure, but nowhere near the 21 million plus that originated in state courts.
In the face of this staggering burden, the problems facing our state judicial systems can only be described as deplorable. The court systems in 28 states had hiring freezes in FY 2010, 13 states froze court staff salaries, six states mandated court furloughs, six states closed courtrooms – one day each month for all California courts. Los Angeles County alone has lost over $130 million of its court budget, and hundreds and even thousands of court employees are being laid off from California to Florida to New Hampshire. And judicial pay, adjusted for inflation, has fallen nearly 24 percent over the past 40 years while the average U.S. worker’s wages have risen nearly 18 percent.
Because of bulging criminal dockets and huge pro se backlogs, all made worse by the faltering economy, it’s becoming increasingly difficult for business litigants and others who are embroiled in civil disputes ranging from consumer fraud to family matters to get courtrooms for trial or to have trials, especially jury trials, scheduled in a timely way – often, they wait years to get their day in court. It was Clause 40 of Magna Carta that proclaimed, "To no one will we sell, to no one will we refuse or delay, right or justice." Justice that must depend on the purse, or justice so long delayed that it is in essence denied, does not deserve the name.
For the privileged litigants who can afford it, the natural response to a denial of justice in the public courtrooms of our nation is to take their business to private judges and mediators, operating outside the watchful gaze of the public and beyond the effective reach of the rule of law. The harm that results from that private response is experienced as well in the public sphere, where adjudication conducted out of the public’s sight mystifies instead of educating, depriving democracy of one of its essential wellsprings, that of seeing justice done.
For those litigants who cannot afford that private alternative, the natural response to a denial of public justice is more troublesome still. They must either suffer in alienated silence or take the law into their own hands. Judy Norman, the North Carolina woman whose story and trial are studied by many first-year students in their criminal law courses, tragically exemplifies that response. For 25 years, Ms. Norman was psychologically and physically abused, beaten by her husband, and forced into prostitution. The state rebuffed her attempts to seek counseling and welfare benefits, and the police refused to take action unless she filed a formal complaint, which she was too afraid to do. Because she thought her husband was “invulnerable to the law,” she finally shot and killed him in his sleep.
The human rights activist Gary Haugen, founder and director of International Justice Mission, has documented the way in which wealthy and powerful elites in third world countries with dysfunctional public justice systems often circumvent those systems with workarounds that submit their controversies to private dispute resolution, leaving the poor, who of course can afford no such recourse, to depend on the clogged and at times corrupt public courts. That leads to a vicious cycle of cynicism and disaffection in which the system’s democratic legitimacy, the very foundation of its capacity to articulate and enforce the rule of law, disintegrates. And that in turn leads increasing numbers to flout the law, to resort to self-help, or to give up altogether, eroding the traditional claim of the judicial branch to a share of public resources sufficient to perform its mission with competence and integrity. In the meantime, the powerful constituencies that once treated the public courts as their arbiters of last resort develop a diminishing stake in keeping the public judicial system afloat.
I hasten to add that this picture of what sometimes happens abroad stands in stark contrast to the judicial systems over which you preside. We have ample reason to be proud of the integrity and efficacy of American courts, both state and federal. But to say that is not to condone indifference to the early warnings of disintegration.
The magnitude of the problem tempts one to reach for sweeping solutions in some unifying vision of “access to justice” writ large, but the diverse and multifaceted character of the problem resists reduction to any grand and fully coherent theme conveniently captured in a simple slogan. Once one recognizes the perils of rigidly idealistic thinking – something that has from time to time plagued everyone in our “access to justice” office – one comes to a recognition that what is perhaps needed more than an inspiring but abstract and utopian call for a thousand-fold increase in funding is a series of tangible, achievable reforms that will make state courts better at what they do and more engaged in making law and legal remedies accessible to all.
Before I propose three sets of tangible, achievable reforms, let me address an overriding concern that many express with the very idea of active judicial leadership. It is that judges should be neutrals, not participants. They should be objective. They need to remain above the fray. People don’t agree on a definition of “judicial activism” but, in a riff on Potter Stewart’s definition of hard core pornography, they “know it when they see it.” And, if they affix that label to it, they know they don’t like it. But whatever one’s notion of impermissible approaches to judging, there is a basic and often ignored difference between judicial neutrality and judicial inactivity, between judicial objectivity and judicial passivity. Perhaps the greatest image we can conjure of a wise judge is that of Solomon. We all remember his creative pre-DNA-test solution to the problem of adjudicating the contested issue of maternity between two women making competing parental claims to the same infant. The wise king’s proposed solution, which he sprang on the women when he suggested splitting the baby in two while he watched the reactions of both claimants to motherhood, was the very essence of neutrality and objectivity. But it was hardly passive! It was as active as all get-out. Solomon’s wisdom sprang from making justice an active verb.
One inspiring example of the “good” judicial activism is taking place in Philadelphia, where a trial judge named Annette Rizzo launched an innovative mortgage mediation project. Judge Rizzo was initially asked by a particularly progressive sheriff to issue an area-wide moratorium on foreclosure sales, which were ravaging Philadelphia neighborhoods. Judge Rizzo, taking a leaf out of John Marshall’s book, declined to issue that specific relief – which would undoubtedly have garnered her the “bad” judicial activist label – and instead took the opportunity literally to restructure the foreclosure system in Philadelphia. She issued an order that no foreclosure sale could win judicial approval before the lender had at least entered into good-faith mediation with the homeowner, aided by a state-funded housing counselor. The mayor’s office got on board, the relevant stakeholders (including the lenders) offered input, and the program was off and running. My staff and I paid a visit to Judge Rizzo’s courtroom and witnessed the program, which has successfully kept hundreds of families in their homes and permitted many others to achieve more dignified and graceful exits than would otherwise have been possible.
Important reform efforts have also been initiated by state supreme court justices, as with the significant indigent defense reform effort spurred by the Nevada Supreme Court, which issued an order in 2008 calling for a completely state-funded Public Defender system and a permanent statewide commission on indigent defense. Although the Nevada reform effort is ongoing and there is still much work to be done, that state’s high court heroically chose to address systemic deficiencies in its system for fulfilling the obligation imposed by the Sixth Amendment under Gideon – and the promise of equal justice made by Gideon – without being asked to do so in a specific case. Of course, once asked to address the question of systemic deprivation of the protections that Gideon affords, it takes just as heroic a court to answer the call, as the New York Court of Appeals recently did under the visionary leadership of its Chief, Jonathan Lippman, in permitting the plaintiffs’ lawsuit to go forward in Hurrell-Harring v. State of New York.
I would urge every state’s highest court, led by every state’s chief justice, to establish an exploratory committee or task force with the goal of surveying the performance and evaluating the adequacy of the way your state is discharging its federal constitutional duty under Gideon. Judicial leadership of the sort shown in Nevada and New York and elsewhere is necessary if Gideon’s promise is to become more than what Robert Jackson once called a “promise to the ear to be broken to the hope, like a munificent bequest in a pauper’s will.”
Now, let me turn to the first of three areas of possible reform: juvenile justice. Let’s make sure that what happened in Luzerne County, Pennsylvania between 2003 and 2008 never happens again. As many readers know, here thousands of kids waived counsel and accepted pleas – in a system designed so that judges could receive kickbacks for placing children in a residential facility. The complaint alleged that none of the youth without counsel who appeared before a judge and pleaded guilty even had a colloquy about the waiver of counsel or about pleading guilty. They went to a hearing and in a matter of moments disappeared in shackles and handcuffs, for crimes as minor as stealing a four-ounce jar of nutmeg. Now of course the Pennsylvania Supreme Court vacated some 6,500 adjudications and consent decrees, expunged the convictions, and dismissed all cases with prejudice.
The primary goal of the juveniles and their attorneys in Luzerne County was relief in their individual cases, but state court judges can decide to use the lessons from that case to institute systemic change, just as Annette Rizzo took it upon herself to do in Philadelphia.
When we were juveniles, there was an ethos that everyone was out to help the kids, so issues like waiver of counsel weren’t really important. Today, confronted with situations like Luzerne County, we know better. The consequences of juvenile adjudications are serious and long term; the lack of representation can reshape a child’s entire life. Being found guilty can mean expulsion from school, exclusion from the job market, eviction from public housing, and exclusion from the opportunity to enlist in the military. It can affect immigration status. This is serious stuff.
And because it is so very serious, it’s critical that our state chief justices play a major leadership role. They can begin by protecting the right to counsel. The best way to do that is to prohibit the judicial acceptance of counsel waivers in your state by juveniles who have not at least received the advice of an attorney about their options and about the consequences of waiving such an important right. Many state supreme courts have adopted such a rule, including several in the past few years. A few states do not accept a waiver of counsel from juveniles under any circumstances. Every jurisdiction in the country should adopt a rule that at the very least requires consultation with an attorney prior to waiver of counsel.
We know from careful national studies that juveniles who lack counsel are much more likely to plead guilty without offering any defense or mitigating evidence. And without any credible defense, those young people are far more likely to end up in detention or incarceration, where they’re much more likely to be exposed to assault or sexual abuse, much more vulnerable to suicide, and far more likely to commit further crimes after their release. You, as our chief justices, can make a difference. Every child in delinquency proceedings should have access to justice via a right to counsel at every important step of the way: before a judicial determination regarding detention, and during probation interviews, pre-trial motions and hearings, adjudications and dispositions, determination of placement, and appeals.
Beyond waiver, it is time for the states to focus on the entire juvenile system, which has changed so much and yet receives so little systematic attention. We should have Blue Ribbon Commission on juvenile cases in every state, to find out the facts on waiver of counsel, on youth charged in adult court either directly or after transfer from juvenile proceedings, on plea and caseload rates, the qualifications of youth counsel, the collateral consequences for youth of delinquency adjudications and adult criminal convictions, and fees. Fees are important. Juveniles and their families – often poor families – often have to pay for detention, restitution, and victim funds. The National Juvenile Defender Center told our office about a 19-year-old college student who was brought into court in handcuffs because she had not paid fees that had been assessed against her when she was a child. She was held until she agreed to a payment plan.
Florida, Massachusetts, New York, and Washington, have eliminated the indiscriminate shackling of youth in delinquency proceedings. And the rest of the states should follow suit. Now is the time.
A second area in which we can make a difference involves the removal of artificial and often enormously counterproductive obstacles to pro bono representation for limited purposes (so-called “unbundled representation”), pro bono lawyering by attorneys licensed in jurisdictions other than your own, and more meaningful self-representation.
No substantial improvement in the delivery of needed civil legal services is likely unless we can find a way to stimulate more – and better designed and supervised – pro bono activity. It is difficult enough to find capable, well-trained lawyers who are willing to dedicate the time to significant pro bono work, so we simply cannot afford to cling to antiquated rules that, in a misguided application of ethical norms, artificially inhibit willing attorneys’ ability to actually perform pro bono services ably and with integrity.
In particular, there are several rules we should support:
Number One: all states should permit discrete task representation. Roughly 40 states have adopted the ABA’s Model Rule 1.2(c), or something similar, which permits pro bono attorneys to enter into representation agreements of expressly limited scope. These rules allow such attorneys to perform what are often short and simple tasks without taking on the duties and limitations that attend more classic full-scale attorney-client relationships. And because rules like 1.2(c) permit discrete task representation only where reasonable under the circumstances and after informed consent by the client, there is little or no downside.
Number Two: we should sensibly relax conflict rules for pro bono attorneys. Historically, too many well-intentioned and ethically alert attorneys were prevented from rendering needed services—even when those services were as simple as filling out a request for mediation regarding a client’s pending foreclosure—just because their firms had represented some financial or other institution on a vaguely related matter that had an attenuated theoretical interest in the issue at hand. Courts should not require pro bono attorneys who are providing short-term services with no expectation of continuing representation to screen systematically for such conflicts. Indeed, some states have gone even further – Washington, for example, permits pro bono attorneys to engage in short-term pro bono representation, subject to certain reasonable safeguards, even when they know of a lurking conflict.
Number Three: we should examine state rules of practice as they impact pro se litigants. I appreciate the difficulties that folks who can’t afford lawyers pose to states dockets and courtrooms, but as we embrace technology and form simplification we’ll be in dire need of clear rules that govern how court staff and non-lawyers may guide prospective litigants through the process of filling out self-help forms. I realize that unauthorized practice of law rules aren’t a popular topic of conversation around courthouse water coolers, but we must not inhibit the ability of pro se litigants to seek ministerial help in addressing issues as critical as child custody and housing simply because our UPL rules have not caught up with our reality.
In addition to the juvenile-justice and pro bono reforms, a third initiative that I urge is the creation – and, for those 24 states (and the District of Columbia) that have already created it, the care and feeding – of an Access to Justice Commission, whether by that or some other name, that embodies a sustainable institutional commitment to grading the state’s legal system in terms of how well or poorly it is delivering justice to the state’s people. Such commissions, typically created by supreme court rule or order, are deliberately designed to include judges, bar members, civil legal aid providers, representatives of law schools and, in some instances, members of the state’s executive and legislative branches. And they have achieved some remarkable results.
In California, the Access to Justice Commission secured an annual $10 million appropriation from the state legislature for civil legal services, and deserves much of the credit for the state legislature’s enactment of the groundbreaking Sargent Shriver Civil Counsel Act, which establishes civil Gideon pilot projects that will begin next year.
In Washington State, the access-to-justice commission helped establish the Office of Civil Legal Aid in 2006 as an independent agency within the judicial branch, and in addition to increasing civil legal aid from $6.6 million in 2005 to over $11 million just two years later, it played a key role in implementing rule changes to facilitate unbundled legal services and increase cy pres funding for legal aid.
The Texas Access to Justice Commission has approached funding issues creatively and, in addition to securing $2.5 million from the Attorney General’s budget for legal services for victims of crime in 2001, has helped funnel to legal aid offices fees collected from Texas bar members and from out-of-state lawyers appearing pro hac vice. The establishment of statewide Access to Justice Commissions has been called one of the most important justice-related developments in the past decade, and my office fully agrees.
The unifying theme of the three categories of action I am urging is not to be found in any ethereal abstraction. It is, quite simply, that these steps would manifestly improve access to justice in your states, and, they are demonstrably achievable.
And, if the search for a universal solvent for the intractable problems of justice can be paralyzing, the commitment to these achievable reforms can be empowering. So please don’t take the view that the three categories of changes I’ve outlined are so incremental, the success I’m aiming toward so far removed in time, that there’s no point in rushing to get started. To the contrary, the longer it takes to get there, the more crucial it is to begin without delay. As New Orleans Mayor Mitch Landrieu said in his first State of City address earlier this month, “There’s an old saying that the best time to plant an oak tree was 30 years ago. The second best time is now.”
I end with this thought: The trajectory of the moral universe will indeed bend toward justice, as Martin Luther King famously dreamed, only if we act to make the dream real. Unable to realize that goal in a single leap, we must not despair of realizing it step by step. The benefits of each step may seem small – but, as Richard Feynman once described the trajectory of the photon, each little arrow bent to a particular degree becomes in the aggregate a ray at the speed of light, lighting everything in its path. That ray can light our nation and the world if we all do our part.
Laurence Tribe is the Carl M. Loeb University Professor at Harvard University, and is Senior Counselor for Access to Justice in the Department of Justice.
This article was adapted, with permission, from Professor Tribe's Keynote Remarks at the Annual Conference of Chief Justices, July 26, 2010
Tags: civil rights, democracy, justice, Larry Tribe
05/12/10
by Dick Morris and Eileen McGann
Reviewed by Naomi Wolf
In `2010: Take Back America: The Battle Plan,’ Dick Morris and his wife and coauthor Eileen McGann, present a game plan for Republican victory in the upcoming Congressional elections, and, a putative libertarian manifesto against an alleged plan by Obama to take over the United States of America with a devious Socialist agenda.
The book is fascinating and troubling. Fascinating because Morris and McGann are brilliant political analysts. And they are adept at reading Americans’ true anxieties and crafting policy proposals and language that resonate emotionally and intellectually with them. (Disclosure: I worked informally on policy and message ideas with Morris during Bill Clinton’s 1996 Presidential campaign.) Such smart people, who write so clearly for a mass popular audience, could help Americans -- of all political parties -- better understand the core dynamics behind our moment in history.
But that is not Morris and McGann’s task. Their book is troubling because, in addition to providing important and well-documented insights into crucial issues such as the influence of lobbyists’ money on the voting records of representatives, the skyrocketing deficit and what it means for our economy, and the dangers of unchecked `bureaucratism’ (one of Morris and McGann’s less felicitous but still useful neologisms), `2010: Take Back America’ frames these trans-partisan issues in a fully partisan way and then intercuts its strong reasoning with heated sound-bites.
Take Back’s abiding idea is that America as we know it is ending under Obama’s stealth program to undermine everything that makes America healthy and free: `[T]hese elections will be the critical turning point for America’s future... On the one side is the America we know and love. On the other is a very different America: the dream of Barack Obama…His dream is our nightmare.’
Their overarching assertion is that Obama and a democratic-controlled Congress want to take over America and re-create it as a flat-out socialist system. And, to do this, so the story goes, Obama and co. have craftily deployed tactics such as excessive government intervention in medical care, Congressional Democrats’ enslavement to lobbyists, and increased governmental regulation of banks.
You don’t have to buy into the duo’s partisanship to grant that the issues they raise bear consideration. And the authors' track record for prescient observation reinforces their authority. Morris and McGann rightly note that, in their book, Fleeced, they forewarned readers of a stock market crash, and that, in Catastrophe, they cautioned that Obama would scale up the national debt. Many serious commentators agree with the team’s current predictions that inflation is likely to soar and the dollar will likely weaken -- forcing tax and interest rate hikes for all Americans.
The author’s substantive insights are marred by sloganeering. They skid quickly from serious warnings about unsustainable federal debt, to: `His strategic mantra is: REDISTRIBUTE! He plans to redistribute wealth, to redistribute access to health care, and to raise taxes until it no longer makes sense for productive people to keep working.’
The authors accuse Obama of having a `One World Strategy’ that seeks to subordinate US sovereignty to global intermediaries [`[H]e’ll try to place the entire US economy under the rule of the International Monetary Fund.’ Their analysis, which explores the effect on the US economy of IMF and the G-20 agreements proposed by Obama, is serious, but their rhetoric is extreme.
McGann and Morris range from a powerful discussion of the danger of losing doctors under Obama’s proposed medical care changes to demagoguery on the same issue: `Washington will set the standards of who gets lifesaving treatment or surgery…and who is left to die.’ They follow a sober assessment of the increase in the money supply, which people of all backgrounds are concerned about, with a footnote-less assertion that legislation the Administration proposed `would give the federal government the power to seize any business, fire its management, wipe out its investors, and run it as a government company for as long as it wanted, spending unlimited taxpayer money in the process…Fidel Castro and Hugo Chavez have no broader powers!’
The authors supply a beautiful assessment of the risks to the Constitution of some unchecked interventions; for this liberal, their summary of the Heritage Foundation’s argument that “nowhere in the Constitution is Congress given the power to mandate that an individual enter into a contract with a private party to purchase a good or service and…no decision or doctrine of the Supreme Court justifies such a claim of power’ is extremely suggestive and sparked an interest in greater depth of understanding.
But then the authors undertake an extreme about-face and undermine their own constitutionalist arguments: they worry, for example, that Guantanamo isn’t tough enough to keep its prisoners off the battlefield once released, which nicely ignores the fact that the prisoners are both held and released without due process of law required by the same Constitution, or that they have been tortured, also forbidden in the Constitution.
The `Obama-as-Socialist Dictator’ meme gets a workout in this book, sometimes on very persuasive arguments about a power grab and sometimes on evidence that is much slighter: `[E]ver since President Obama came to Washington, his near-hysterical criticism of Fox news and anyone else who doesn’t toe his line have us worrying that we may be in the first stages of an attempt to roll back our democracy and inhibit freedom of speech. Remember: all dictatorships begin with increasingly strident criticism of the news media.’ Rather, as Jefferson knew, all democracies begin amidst increasingly strident criticism of the news media. (Indeed Jefferson and Adams, when in Washington as Presidents themselves, spent a great deal of time criticizing, sometimes stridently, the contemporary news media.) Dictatorships begin with increasingly tough restrictions on the news media and penal or other actual punishments for critical speech. Big difference.
Despite my reservations, and, my efforts to read with eyes wide open, I came away from 2001: Take Back America with a valuable -- if dismaying -- understanding of how liberties might, theoretically be subverted from the left. And, horribly enough, I also came away with an unwelcome and rather appalling insight about liberty in America and how to protect it: if Bush modeled from the right, as I argued in The End of America, a ten-step program for taking excessive power – and, as I argued myself in my conclusion, future leaders of any party are likely to be tempted to replicate those tactics because power grabs work and serve anyone in office – why should I be surprised by a book that basically proves that my prediction has in some ways come true? This administration may have had a learning curve derived from the previous administration. They too may be making broad, possibly threatening assertions of unchecked power; they too have seen that doing so works.
Every book that warns America is at risk ought to include discussion of ordinary citizens and what they can do to protect our country. Let me write this so it can’t be taken our of context: I do not support most of Morris and McGann’s partisan agenda, they offer exciting, sound, energizing and practical ideas about how citizens can take the power of political change into their own hands. They offer good, useful suggestions about social media and how to use it to; these, and other tips for citizen action, are predicated on the idea that citizens need not leave matters to the elites or the experts but can use social media to raise political questions, start grassroots campaigns, and otherwise make change themselves. This is invaluable, as is the author’s populist message. It would have been even more valuable if aimed at energizing our democracy for any concerned citizen, whether of the left or the right.
McGann and Morris are Republican consultants. So perhaps it is naïve to wish their clear concern for country expressed in this book could be rephrased in trans-partisan terms. But, now more than ever, we need leaders and spokespeople willing to empower citizens to defend liberty in a trans-partisan context.
This may be the moment at which we most need to collapse the paradigms of the left and right in order to save liberties in ways on which Americans -- that those on Morris and McGann and my side of the spectrum – can agree.
How can a traditional liberal trust autonomous government to build a social safety net, when the government is no longer run by the people at all, but rather by corporate interests, and so government is actually enmeshed within business? And how can a traditional conservative trust a presumably autonomous free market, if free market autonomy has been compromised by the way big business has become enmeshed within government? The new, ungainly monster-merger of government and corporate interests arrayed against the people -- whether urban hippie activists or small-town businessmen and women. Getting rid of the usual labels might be a good way to begin to fight back.
In this fight, it truly is us, the people – of all political persuasions – against the government/corporate nexus that serves its own endlessly self-replicating agenda.
2010: Take Back America raises important points for a right wing critique of threats to liberty from the democratic `brand’ of this Leviathan. But it is incomplete because a dualistic left-right worldview, in this historical moment, is incomplete.
I hope McGann and Morris can be persuaded to make use of their next book, and their analytical and predictive powers, to craft a trans-partisan game plan for liberty that takes aim at oligarchs on both sides of the aisle, and by doing so addresses all of us.
There would have been a great value in this book as a critique of threats to liberty from a democratic administration – to bookend other works that analyze threats to liberty from the right -- if it had been written with a goal that transcended partisanship. For the truth is that there can be threats to liberty from excessive power grabs from the left or the right; from an unchecked, dictatorial representative of private sector interests, as I argued Bush sought to be, to interests that come from the left that seek overweening power through other tactics, such as excessive government controls of private life. And history shows that damage to liberty has come in both costumes and from both strategies.
Naomi Wolf is the author of seven books, including the New York Times bestsellers The Beauty Myth, The End of America and Give Me Liberty.
Tags: democracy, Dick Morris, health care, Naomi Wolf, the economy, Book Briefs
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
by Ciara Torres-Spelliscy
Former Federal Reserve Chairman Alan Greenspan offered his mea culpa for overestimating the ability of markets to self-regulate. Testifying before Congress in October 2008, at the height of the financial collapse, Greenspan said he “had made a mistake in presuming that the self-interest of organizations, specifically banks and others, were such [that] they were best capable of protecting their own shareholders and their equity in the firms.”
Judge Richard A. Posner, one of the great boosters of free-market economics, offers no such apologies. Absent from Posner’s book, The Crisis of Capitalist Democracy, is his own "Greenspan epiphany", one which would perhaps acknowledge his enormous support for the system now crumbling at a scary speed.
Reading Judge Posner’s latest opus gave me the odd sense of having been dropped, Alice-in-Wonderland style, in into the rabbit hole that is Judge Posner's personal and conflicted response to America’s recent economic crack-up. On one page, Posner offers lucid prose about the toxic mix of a poorly regulated financial industry, cheap money, and enthusiastic home buyers who didn’t bother to read the fine print on their sub-prime loan agreements. Then, on the next, Posner flies into long reveries about Keynes and what all his impenetrable metaphors really meant and the psychology of economic depressions; he peppers the page with perplexing passages about bankers who, in Posner’s view, shouldn’t be blamed for the crisis, since their behavior was professionally rational.
Judge Posner divides his mental universe into two distinct compartment, the worthy and the unworthy. John Maynard Keynes, Milton Friedman, and bankers who take appropriate amount of risk, speculators who speculate just enough, are worthy. Regulators, who didn’t sufficiently account for systemic risk, home buyers who did not understand their mortgage terms, workers who cling to their jobs during economic depression, and post crisis advocates for consumer protection, are unworthy.
Judge Posner saves some his harshest criticisms for the Obama administration’s financial team. Its members had to stop the economic free-fall but did not, in Judge Posner’s view, get the stimulus or the bailout right. Judge Posner isn’t happy about the overlap between the Bush team (who were in control when the crisis hit) and the Obama team (who had to clean up). He is disappointed that Obama didn’t have an economic fix-it plan in hand on Inauguration day – though even Judge Posner admits depression and its causes warrant serious, detailed, and deliberative analysis. Why wants the president or his financial advisers to be shooting the dark isn’t at all clear.
But, despite the hot-and-cold nature of the book, Judge Posner wrestles with the key policy questions of the day:
- How can the U.S. -- which runs a nearly perpetual national debt (45% that is financed by foreign nations) -- ever dig itself out of the economic hole?
- How can we effectively regulate financial institutions when capital and talent can flee to other countries?
- How can we incentivize banks to take risks that don’t cause systemic risks?
- How can we build a more sustainable economy?
- How do we make tough long term economic decisions when politicians are narrowly focused on the next election?
Posner deserves credit for calling what others euphemistically call the “great recession” what it really is: a depression.
It takes him most of the book to get to the democratic problems which to which the title refers. Brennan Center Executive Director Michael Waldman has repeatedly said the financial crisis is fundamentally rooted in a political crisis. Here Judge Posner wholeheartedly agrees with Waldman.
In one of his most damning indictments of the state of American democracy, Judge Posner states:
Campaign contributions -- insulated in the name of the Constitution by a conservative Supreme Court from effective limitation -- make the legislative system one of quasi-bribery. Modern communications technology and marketing techniques, along with the expense of modern elections, amplify the influence the interest groups, especially their influence in blocking change. The short electoral cycle (major federal elections every two years) truncates the government’s policy horizon.
To strengthen our economy, Judge Posner offers 10 possible policy solutions; these include re-enacting Glass-Steagall, to changing the financing of regulatory agencies, to reforming credit rating agencies. But his policy suggestions are full of nuance which would make them nearly impossible to implement given the broken political process.
Judge Posner ends on a sobering note: “The question I want to leave the reader with is whether the United States has an institutional structure and a political culture equal to the economic challenges facing it.” His answer to this question is largely, “no.”
Interestingly, even though Posner puts his finger precisely one of the sources of our predicament -- the way we finance our elections and the exaggerated influence this gives to narrow interests -- he does not explore policy solutions that would remedy this problem. While he is able to imagine reordering many economic structures from regulations to regulators, he views the political norms as static and immovable. He doesn’t consider the possibility that we could finance our elections differently using public funds instead of private ones. There are existing Congressional bills that would provide this option such as the Fair Elections Now Act (FENA H.R. 1826). Perhaps solutions that go to the heart of our democratic crisis, instead of our capitalist crisis, could be the subject of his next book.
Ciara Torres-Spelliscy is an Attorney at the Brennan Center for Justice.
Tags: democracy, Book Briefs, Barack Obama
04/02/10
by Theodore Marmor
One of the most striking features of the American health care debate is how little attention was paid to the subject of justice. The idea of fundamental fairness, questions about solidarity and what it requires in the way of patient cost sharing, and the importance of equal access: all were central components of the public conversation about health care – in Canada and Britain and democracies elsewhere.
The specific tropes vary as do ideas about what, specifically, justice requires, but notions of justice were central to similiar public conversations about universal health care in Scandanavia and elswehere on the European continent.
What lessons might we have learned had the American debate been less provincial? And did ideas about justice solidify and stabilize the health reform efforts elsewhere?
Consider the the British National Health Service (NHS). From the outset, it celebrated the idea that medical care should be 'free at the point of service.' This is a core premise. The idea is that equally ill citizens should share equal access to care – regardless of their ability to pay, and that, were it otherwise, financial barriers at the point of service would disproportionately, effectively, allocate health resources to those who can afford to pay for them.
Interestingly, the English practice has never quite lived up to its egalitarian norm. For decades, the NHS allowed for 'pay beds' which accelerates access to care for those with private insurance for public hospitals. From the start, the British system permitted physicians to charge for 'private patients' even while they devoted the bulk of their time to NHS patients. So, the principled commitment to a more just distribution of medical care has, in practice, accomodated some limited privileges of English physicians and some patients. This form of a mixed market for medical care has been the subject of continuing controversy within the Labour Party. It has also provided a safety valve for discontented physicians or patients with means or private insurance. But the essential fact remains: in contemporary Britain, two seemingly conflicting ideas – guaranteed access according to medical need for most, and, some access according to ability and willingness to pay — coexist; and, this is so even though the NHS accounts for roughly 90% of expenditures and private insurance about 10%.
In practice, Canada is even more egalitarian. Consider Canada’s hospital and physicians' financial rules. The Hall Royal Commission report of 1964– the founding document in the Canadian medicare system – called for a universal, comprehensive, accessible, publicly administered, portable system of health insurance. This is designed to remove all financial barriers to hospital and physician care and thus ensures equal access for all citizens. Successful practice depends, however, on rules that require physicians – and hospitals – to participate fully or fully exempt themselves from the public insurance system. Doctors can’t charge patients who come to them under the Canadian Medicare Program. Indeed, except in very limited instances, the Program does not allow private health insurance for medical services that the Program covers. The obvious goal is to substitute medical need for financial clout as a criteran for access. Canada's system is remarkable in this regard. No other industrial democracy places such firm limits on private insurance purchase.
Similiarly, if one reviewed the health care programs in France, Japan, Holland, and Germany, a common pattern would emerge. Each country offers different, but limited, market options for those who want and can afford special treatment; each of these countries, as distinct from the U.S., created a universal health care program fundamentally based on the idea that medical care is a merit, not a market good. The equal access norm does not, of course, mean ideal practice, but care is more equally distributed. It is also true that more equal medical care does not necessarily mean that access to health care is equally distributed in these countries. Health care and health aren't the same thing, and making populations more equally healthy is much more difficult than making medical care more fairly distributed.
Enter the US debate -- and the relative omission of serious ethical justification for the health care overhaul, soon to be termed "Obamacare." During his long campaign for healthcare reform, Obama repeatedly and eloquently described the traumatic, destabilizing consequences under- and uninsured Americans face. Private health insurance, he said, presents for many Americans a nightmare of troubles -- recissions, denial of applications because of pre-existing conditions, misleading advertising, etc. Medical inflation and the problems it has caused were the focus of much public hand-wringing. Cost control, too, was the subject of great public interest. But, what makes the Obama reform package a 'just' one? Or a morally-compelling legislative effort towards what end? The expression "affordable health care for every American" was bandied about, but was not clearly defined. Instead, it was repeatedly invoked as a means to avoid the various personal horror stories told and re-told throughout the long debate. In fact, there was little talk about why affordable health care for all is a good, much less, important or democratic, idea.
The politics of reform, which produced legislative "victory," will continue. Indeed, in the last days before it passed, Obama campaigned for healthcare reform as if he had the elections of 2010 and 2012 in mind. The Obama reform rhetoric will provide the opportunity to reinforce why this overhaul made sense, why it should compel admiration rather than scorn, and why it might make a more just America. And, this campaign will be crucial to heading off weakening rather than strengthening Congressional adjustments while we wait for the bulk of the legislative reforms to be implemented between now and 2014.
Last summer T.R. Reid published a much lauded book about comparative health care reform experiences in leading democracies. In a review in Health Affairs, I contributed to critical acclaim surrounding The Healing of America and the compelling case it makes for unversal health care; in doing so, Reid invoked the moral arguments that animated reform efforts in France, Britain, Canada, Japan and Germany.
Yet, while rightly calling attention to the moral principles that undergirded reform efforts abroad, Reid conflates the idea that consensus is, on normative grounds, a necessary condition for reform and the notion that arguments for a more just distribution of care would help rally support. Reid’s treatment of Canadian development was, in fact, misleading. His coverage, for example, omitted mention of the long period between 1957 and 1971 when Quebec finally joined in the national medical insurance program. Reid implied that Canada arrived at a moral consensus, which resulted in the Medicare Program. In fact, the justice imperative underlying Canada's national insurance program was a more a product of the nation’s move to universal coverage, than it was the force that animated the move.
Impressed by the overall merit of Reid’s work, I did not want to detract from his argument, at least not last summer when it was far from certain Congress would pass any healthcare legislation. Now, however, it seems important to push those seeking to solidify and to improve reform legislation to consider, seriously and thoughtfully, the lessons of comparative experience abroad.
Theodore Marmor is the author of 13 books about health care and public policy, the most recent of which is The Politics of Medicare (Transaction Press); A professor Emeritus of Public Policy and Politics and Yale University, Marmor is editor of a recent collection of essays about healthcare policy, Fads, Fallacies and Foolishness in Medical Care Management and Policy (World Scientific Press, 2007).
Tags: democracy, health care, justice, Theodore Marmor, Book Briefs, Barack Obama
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