I took the family to see Harry Potter & the Half Blood Prince last night and loved it. As the books get longer and longer, the filmmaker found a way to condense it down to where it kept moving nicely and 2 hours 20 minutes didn't seem that long. However, I have to admit that having read the books, the ending didn't have the same shock value as it did the first time I read it.
It was nice to have a movie that the whole family could see. It's been getting harder later. Child #1 is almost 17 and likes loud rock music, sophomoric gross out movies with Seth Rogen and Adam Sandler and chick flicks. Daughter #2 is 14 and can't stand cussing or kissing in a movie. She likes horses, manga and anything sweet and cuddly. Harry Potter was a good fit because the language is clean with only a few tame kissing scenes and it's full of action. It is a great good guys vs. bad guys movie.
J.K. Rowling hit the jackpot on this book series thanks to a combination of good luck and good plotting. What I like about Harry Potter is the juxtaposition of the familiar and the fantastical. On the one hand, this is a story about aspiring wizards battling the dark lord to save humanity. However, it is also a story about school and friendship and bullies and strange teachers. Although I have never been to an English boarding school, I can imagine Hogwarts as the image of one. Hermione Granger is the archetype of the studious working class girl who earns the right to see inside the privileged world of the elite. Ron Weasley is the young son of a family with a noble title but not much else to their name. Harry Potter and Draco Malfoy come from strong noble families who are bound to clash.
I also like the humor in the stories. Although the stories kept progressively darker, they save room for moments of humor. In the Chamber of Secrets, the scene with Moaning Myrle the Ghost, who offers to share her bathroom haunt with Harry if he gets killed is priceless. In the Goblet of Fire everyone ends up at the dance with mis-matched dates. As Harry and Ron and their twin dates are feeling terribly uncomfortable, a boy approaches and asks one of the girls for her hand and she says "Take my hand, take my ..., take me out of here" or words to that effect. Finally, in the Half-Blood Prince, Luna Lovegood is so unselfconsciously weird and so comfortable in her own skin that she generates a chuckle just to look at her, but not in a mean way.
I also like the character development over time. Ron, Harry and Hermione don't change much, but the characters around them do. The transformation of Neville Longbottom from a scared, stuttering child to a hero is inspiring. On the other hand, Prof. Dumbledore's progression from omniscient and omnipotent to frail and fallible makes him an endearing character. Finally, the change in Draco Malfoy is perhaps the most pronounced. For several films, he is the caricature of a bully surrounded by his sidekicks. However, by the Half-Blood Prince, he is a lonely, haunted figure in black, a Hamlet-like character dwelling in the shadows of indecision.
I can't wait for the final chapter to come out. Although I was disappointed by the overly long book, the story is a journey which deserves a conclusion. Besides, the homage to the Lion, the Witch and the Wardrobe at the end makes the failure to edit down the first 500 pages forgivable.
Sunday, August 2, 2009
Sunday, July 26, 2009
On Insensitive Comments and Being 16 and Stupid
Recently an Austin radio talk show was canned because one of the hosts used a derogatory term for Mexican-Americans about 30 times. This illustrates the axiom that my right to free speech ends at the point that it impacts my employer's profits. However, it makes me think back to some of the stupid things that I did or tolerated when I was a lot younger.
I was a smartass when I was in high school. If someone had been following me around with a video camera, my future would have been in doubt. In particular, I remember two moments during my high school years.
My male history teacher made a comment about how women achieved the vote and then voted in Warren G. Harding, one of the most corrupt and incompetent presidents in history. I repeated this statement to one of my female teachers and reached a look which could kill. To me, this fell within my absurdist view of life (which I have not completely abandoned according to a recent Facebook quiz). To me, it was a Nelson Muntz "Ha Ha" moment. However, to my feminist teacher, I was demeaning one of the most important achievements in women's rights. I never saw it coming.
Another time, a classmate mine told a joke involving Jews. I won't repeat it because it is too offensive. I didn't repeat the joke and I don't think I laughed at it. However, I didn't condemn it. This was partly because in high school, you expect the outrageous. However, it was also because Jews were not real to me. The only Jewish person that I knew was my scoutmaster, Captain Warshawsky. He was a figure of strength. Thus, Jews were just people who went to another church. It is as though someone had threatened to exterminate all Methodists. It wasn't something that registered with me at that time. Intellectually I knew about the holocaust. However, emotionally it could just as well have involved martians.
With the perspective of 30 years after high school, I see things a bit differently. I am the parent of two daughters. I want them to be treated the same as their male classmates. I want them to succeed. I work for a law firm in which all the partners are Jewish. I have been to Seder observances and have sat shivah. Being Jewish is real to me now. The horror of the holocaust is real to me now. By the same token, now that I have Ukrainian friends, the horror of the Holodymyr (the terror famine of 1932-33) is real to me now.
Everyone is entitled to be young and stupid at some point in their lives. However, the real question is whether you can stay 16 forever. Judgment comes from experience. As you grow older, you meet people who are not like you and you come to understand other people's stories. Once that happens, it is no longer acceptable to act as is if you were young and stupid. Once you have the capacity to understand someone different than yourself, you have to act as though the world is bigger than yourself. At that point, ignorance is no longer an excuse. Although I didn't actually listen to the disputed radio show, I can imagine the host as a naughty 16 year old saying a bad word over and over the shock value. However, you don't get to stay 16 and ignorant for ever.
I was a smartass when I was in high school. If someone had been following me around with a video camera, my future would have been in doubt. In particular, I remember two moments during my high school years.
My male history teacher made a comment about how women achieved the vote and then voted in Warren G. Harding, one of the most corrupt and incompetent presidents in history. I repeated this statement to one of my female teachers and reached a look which could kill. To me, this fell within my absurdist view of life (which I have not completely abandoned according to a recent Facebook quiz). To me, it was a Nelson Muntz "Ha Ha" moment. However, to my feminist teacher, I was demeaning one of the most important achievements in women's rights. I never saw it coming.
Another time, a classmate mine told a joke involving Jews. I won't repeat it because it is too offensive. I didn't repeat the joke and I don't think I laughed at it. However, I didn't condemn it. This was partly because in high school, you expect the outrageous. However, it was also because Jews were not real to me. The only Jewish person that I knew was my scoutmaster, Captain Warshawsky. He was a figure of strength. Thus, Jews were just people who went to another church. It is as though someone had threatened to exterminate all Methodists. It wasn't something that registered with me at that time. Intellectually I knew about the holocaust. However, emotionally it could just as well have involved martians.
With the perspective of 30 years after high school, I see things a bit differently. I am the parent of two daughters. I want them to be treated the same as their male classmates. I want them to succeed. I work for a law firm in which all the partners are Jewish. I have been to Seder observances and have sat shivah. Being Jewish is real to me now. The horror of the holocaust is real to me now. By the same token, now that I have Ukrainian friends, the horror of the Holodymyr (the terror famine of 1932-33) is real to me now.
Everyone is entitled to be young and stupid at some point in their lives. However, the real question is whether you can stay 16 forever. Judgment comes from experience. As you grow older, you meet people who are not like you and you come to understand other people's stories. Once that happens, it is no longer acceptable to act as is if you were young and stupid. Once you have the capacity to understand someone different than yourself, you have to act as though the world is bigger than yourself. At that point, ignorance is no longer an excuse. Although I didn't actually listen to the disputed radio show, I can imagine the host as a naughty 16 year old saying a bad word over and over the shock value. However, you don't get to stay 16 and ignorant for ever.
Friday, July 3, 2009
How a Frightened 13 Year Old Became a Hero of Freedom
Today on the Fourth of July we celebrate freedom from arbitrary government action. This year freedom has a new champion, a former middle school student named Savana Redding who didn’t like having her underwear searched by school officials. The Supreme Court recently ruled that the strip search violated her constitutional rights. As a result, public school students are now protected from having their most intimate areas searched on the flimsiest of pretexts.
Savanna was an unlikely person to make constitutional law. At the time, she was a 13 year old honor student with a 4.0 average who took advanced math class, was on the yearbook committee and participated in the knowledge bowl. In short, she was a nerd. However, she did have a friend named Marissa who was bad news. Marissa was implicated by another student for giving him a pill which made him sick. When Marissa was searched, she was literally covered in contraband. She had prescription strength ibuprofen and an over the counter anti-inflammatory, as well as a day planner containing knives, a permanent marker and a lighter. Marissa identified the planner as belonging to Savana and said that she had gotten the pills from her as well.
This set the stage for Savana to be searched. She admitted that the planner was hers, but didn't know anything about the contents. The initial search confirmed Savana's story that she was innocent. They looked in her backpack, but didn’t find anything. Then they had her empty out her pockets, where they didn’t find anything. Having failed to find anything, the Asst. Principal came to the only possible conclusion: that she must be hiding contraband in her underwear. The school nurse and a female administrative assistant took Savana into an office and made her take off her outer clothes and then pull out her bra and underpants. Not surprisingly, it turned out that Savana was not concealing contraband in her underwear.
After having been held for 2 1/2 hours, Savana was finally allowed to call her mother, while the school secretary sat next to her listening to every word. Savana was very embarrassed by the whole experience. Her mother got angry and demanded an explanation. At that point, the school claimed that they had had their eyes on Savana because she was part of "an unusually rowdy" group at a school dance. When her mother pointed out her exemplary record, the school officials became evasive.
When she didn't get any answers from the school, Savana's mom filed suit. The first judge to hear the case didn’t see anything wrong with the search and tossed the case out, setting the stage for a trip to the Supreme Court. Fortunately, the Supreme Court had a little more common sense. In an opinion by Justice Souter, they ruled that a generalized suspicion of possession of ibuprofen does not justify a strip search. While school officials were perfectly justified in searching Savana’s backpack and outer clothing, the invasive underwear search was unreasonable and just plain stupid (although the reserved Justice Souter did not use those precise words).
The Judge recognized that a strip search of an adolescent girl was not something to be undertaken lightly.
Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. . . . The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be.Under prior Supreme Court precedent, a search is permissible when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Justice Souter reasonably held that generalized concerns that students might hide contraband in their clothing did not justify a strip search. He stated:
But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana;Thanks to Savana, middle school girls are now safe from unwarranted searches of their underwear by overzealous assistant principals. The only question is why it took a trip to the Supreme Court to point out the obvious.
if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.
In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.
Post-script: Savana was kind enough to respond to a message and provide me with some more details from her experience. As a result, I have revised this article from the original version. What makes this all the more shocking to me was that Savana was a good kid who was wrongly implicated and treated like a criminal. I have a daughter who is entering 8th grade. If she was forced to endure this treatment, I would have been outraged as well.
Thursday, July 2, 2009
The Story of Alex's Stuff: A Cautionary Tale for the Internet Age
Last year, a federal obscenity trial was underway when the Los Angeles Times made a startling revelation. It seems that the judge presiding over the trial maintained a website with pornographic pictures on it. A mistrial was declared and an investigation was commenced. Now that the investigating committee has released its report, the actual facts are a lot tamer than they originally appeared. However, it makes for a good cautionary tale about privacy in the internet age.
Alex Kozinski is a federal judge. As a matter of fact, he is the chief judge of the Ninth Circuit Court of Appeals. Sometimes appeals judges are assigned to conduct trials. When Judge Kozinski was tasked with conducting an obscenity trial, he found that his personal computer files received a lot of attention. It turns out that Judge Kozinski, like most people, receives email. Back in the dial up age, it took a long time to download attachments from emails. Because of this, Judge Kozinski set up a folder on his personal computer to store email attachments. He called this folder "stuff." Like many of us, Judge Kozinski sometimes received colorful emails. Some of the files downloaded to the "stuff" file included a naked woman on all fours painted like a cow and a half-naked man with a sexually excited farm animal. No doubt, someone thought these pictures were funny. The email attachments, whether innocuous or ribald, all went into the "stuff" folder.
At some point, Judge Kozinski decided that it would be good to be able to access his personal computer files from the internet. His son, who was more computer savvy than he, set up a website, alex.kozinski.com. This way, the good judge could access his files from the internet. This was not a website in the traditional sense. It had no home page. It was just a way to get to his home computer. Unfortunately, the general public could get to this home computer as well. Things began to unravel when Judge Kozinski sent a video of himself bungee-jumping to a blog. Rather than posting the video, the blog posted a link to the judge's website. As a result, the general public could figure out that there was a website called alex.kozinski.com that contained the judge's files.
The judge and his computer savvy son took steps to try to protect his privacy. One thing they did was to put up a notice on the opening page saying "Nothing to see here pardner, move along." However, they were ultimately unsuccessful. As a result, a lawyer who was unhappy with the judge managed to penetrate his ineffective security measures and notified the newspaper. On June 11, 2008, the Los Angeles Times published an article entitled “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website.” The article stated that the Judge, “who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos.”
To his credit, the judge did the right thing. He declared a mistrial in the criminal case and reported himself to the federal judiciary to be investigated. The investigation ultimately concluded that he had failed to heed repeated warnings that his personal files were at risk, but that he had taken responsibility after the email attachments hit the fan. The judge had to hire a lawyer and give testimony under oath. He had to explain why he didn't delete certain files that the public might find prurient. In the end, it was no doubt expensive and embarassing for the judge.
However, for the general public, the message is clear. Whether it is incriminating photos on myspace or email attachments stored on a personal website, very little is private once it hits the worldwide web. While you may regret it, you can't always make it go away. If someone is unhappy with you or just curious, you could find yourself, like Judge Kozinski, facing a lot more attention than you would like.
Alex Kozinski is a federal judge. As a matter of fact, he is the chief judge of the Ninth Circuit Court of Appeals. Sometimes appeals judges are assigned to conduct trials. When Judge Kozinski was tasked with conducting an obscenity trial, he found that his personal computer files received a lot of attention. It turns out that Judge Kozinski, like most people, receives email. Back in the dial up age, it took a long time to download attachments from emails. Because of this, Judge Kozinski set up a folder on his personal computer to store email attachments. He called this folder "stuff." Like many of us, Judge Kozinski sometimes received colorful emails. Some of the files downloaded to the "stuff" file included a naked woman on all fours painted like a cow and a half-naked man with a sexually excited farm animal. No doubt, someone thought these pictures were funny. The email attachments, whether innocuous or ribald, all went into the "stuff" folder.
At some point, Judge Kozinski decided that it would be good to be able to access his personal computer files from the internet. His son, who was more computer savvy than he, set up a website, alex.kozinski.com. This way, the good judge could access his files from the internet. This was not a website in the traditional sense. It had no home page. It was just a way to get to his home computer. Unfortunately, the general public could get to this home computer as well. Things began to unravel when Judge Kozinski sent a video of himself bungee-jumping to a blog. Rather than posting the video, the blog posted a link to the judge's website. As a result, the general public could figure out that there was a website called alex.kozinski.com that contained the judge's files.
The judge and his computer savvy son took steps to try to protect his privacy. One thing they did was to put up a notice on the opening page saying "Nothing to see here pardner, move along." However, they were ultimately unsuccessful. As a result, a lawyer who was unhappy with the judge managed to penetrate his ineffective security measures and notified the newspaper. On June 11, 2008, the Los Angeles Times published an article entitled “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website.” The article stated that the Judge, “who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos.”
To his credit, the judge did the right thing. He declared a mistrial in the criminal case and reported himself to the federal judiciary to be investigated. The investigation ultimately concluded that he had failed to heed repeated warnings that his personal files were at risk, but that he had taken responsibility after the email attachments hit the fan. The judge had to hire a lawyer and give testimony under oath. He had to explain why he didn't delete certain files that the public might find prurient. In the end, it was no doubt expensive and embarassing for the judge.
However, for the general public, the message is clear. Whether it is incriminating photos on myspace or email attachments stored on a personal website, very little is private once it hits the worldwide web. While you may regret it, you can't always make it go away. If someone is unhappy with you or just curious, you could find yourself, like Judge Kozinski, facing a lot more attention than you would like.
Sunday, June 14, 2009
A Fable About the Fifth Commandment or An Anti-Abortion Zealot Approaches Heaven
Recently a man walked into a church and killed one of the ushers in cold blood. He did it because the usher was also a prominent doctor who performed late-term abortions. By killing the doctor, he believed that he was protecting the unborn. Thus, in a very twisted sense, he killed to enforce the commandment Thou Shalt Not Kill. He will probably spend the rest of his life in prison and die there as an old man.
Let's imagine what happens when he appears at the gate of heaven. The man walks up to St. Peter and says, "I have done God's will and I am here to claim my heavenly reward." St. Peter asks him, "Do you repent the sins you committed in your life on earth?" The man honestly answers yes, because he did not consider killing an abortionist to be a sin. St. Peter tells him, "Based on your heart-felt confession, you ware welcome to enter heaven, my son."
However, as the man enters heaven, he is confused. Although heaven is packed with billions of souls, he immediately notices a teen prostitute who died of AIDS, a liberal politician and the very same abortion doctor who he had killed. In a rage of righteous indignation, he seeks out Jesus and demands that he be given a sword to drive the hated sinners to Hell. Jesus sadly shakes his head and says, "When I ate with tax collectors and sinners, it was to save them, not to condemn them. Why are you unhappy that I have succeeded?"
The man spits in Jesus's face and storms out of heaven to find a more righteous place.
Apologies to C.S. Lewis, The Great Divorce.
According to a recent article in the newspaper, a majority of people now consider themselves pro-life, although they do not all oppose abortion in all circumstances. The man who slew the abortion doctor was not pro-life. His friends said that he had been consumed with an Old Testament eye for an eye mentality.
The problem with commandments is that we are so used to seeing them as negative that we fail to see them as a call to do good. In church this morning, the pastor said that he urges his confirmands to learn the ten commandments, but also reminds them that the commandments boil down to two things: love and relationships. Mind you, this was coming from the conservative church that I attend, not the liberal one.
I don't remember reading Luther's Small Cathecism when I was growing up. It may be that I wasn't paying attention or that our church was too modern to use such a dated text. However, when I read Luther today, I am amazed at how well he captures the paradoxical nature of Christianity. In Luther, the commandments are not just stop signs setting forth boundaries which may not be crossed, but beacons summoning us to a place where we can love God and love our neighbor. Here is what Luther had to say about the Fifth Commandment:
In the Large Cathecism, Luther expands on this theme. It is a long passage, but worth reading.
The man who shot the abortion doctor was a murderer. He may have been anti-abortion, but he was not pro-life. As Luther clearly explains, Christians are called upon to be pro-life in all respects.
Let's imagine what happens when he appears at the gate of heaven. The man walks up to St. Peter and says, "I have done God's will and I am here to claim my heavenly reward." St. Peter asks him, "Do you repent the sins you committed in your life on earth?" The man honestly answers yes, because he did not consider killing an abortionist to be a sin. St. Peter tells him, "Based on your heart-felt confession, you ware welcome to enter heaven, my son."
However, as the man enters heaven, he is confused. Although heaven is packed with billions of souls, he immediately notices a teen prostitute who died of AIDS, a liberal politician and the very same abortion doctor who he had killed. In a rage of righteous indignation, he seeks out Jesus and demands that he be given a sword to drive the hated sinners to Hell. Jesus sadly shakes his head and says, "When I ate with tax collectors and sinners, it was to save them, not to condemn them. Why are you unhappy that I have succeeded?"
The man spits in Jesus's face and storms out of heaven to find a more righteous place.
Apologies to C.S. Lewis, The Great Divorce.
According to a recent article in the newspaper, a majority of people now consider themselves pro-life, although they do not all oppose abortion in all circumstances. The man who slew the abortion doctor was not pro-life. His friends said that he had been consumed with an Old Testament eye for an eye mentality.
The problem with commandments is that we are so used to seeing them as negative that we fail to see them as a call to do good. In church this morning, the pastor said that he urges his confirmands to learn the ten commandments, but also reminds them that the commandments boil down to two things: love and relationships. Mind you, this was coming from the conservative church that I attend, not the liberal one.
I don't remember reading Luther's Small Cathecism when I was growing up. It may be that I wasn't paying attention or that our church was too modern to use such a dated text. However, when I read Luther today, I am amazed at how well he captures the paradoxical nature of Christianity. In Luther, the commandments are not just stop signs setting forth boundaries which may not be crossed, but beacons summoning us to a place where we can love God and love our neighbor. Here is what Luther had to say about the Fifth Commandment:
The Fifth Commandment.
Thou shalt not kill.
What does this mean?
We should fear and love God that we may not hurt nor harm our neighbor in his body, but help and befriend him in every bodily need in every need and danger of life and body.
In the Large Cathecism, Luther expands on this theme. It is a long passage, but worth reading.
189] (U)nder this commandment not only he is guilty who does evil to his neighbor, but he also who can do him good, prevent, resist evil, defend and save him, so that no bodily harm or hurt happen to him, and yet does not do it. 190] If, therefore, you send away one that is naked when you could clothe him, you have caused him to freeze to death; if you see one suffer hunger and do not give him food, you have caused him to starve. So also, if you see any one innocently sentenced to death or in like distress, and do not save him, although you know ways and means to do so, you have killed him. And it will not avail you to make the pretext that you did not afford any help, counsel, or aid thereto, for you have withheld your love from him and deprived him of the benefit whereby his life would have been saved.
191] Therefore God also rightly calls all those murderers who do not afford counsel and help in distress and danger of body and life, and will pass a most terrible sentence upon them in the last day, as Christ Himself has announced when He shall say, Matt. 25:42f : I was an hungred, and ye gave Me no meat; I was thirsty, and ye gave Me no drink; I was a stranger, and ye took Me not in; naked, and ye clothed Me not; sick and in prison, and ye visited Me not. That is: You would have suffered Me and Mine to die of hunger, thirst, and cold, would have suffered the wild beasts to tear us to pieces, or left us to rot in prison or perish in distress. What else is that but to reproach them 192] as murderers and bloodhounds? For although you have not actually done all this, you have nevertheless, so far as you were concerned, suffered him to pine and perish in misfortune.
It is just as if I saw some one navigating and laboring in deep water [and struggling against adverse winds] or one fallen into fire, and could extend to him the hand to pull him out and save him, and yet refused to do it. What else would I appear, even in the eyes of the world, than as a murderer and a criminal?
193] Therefore it is God's ultimate purpose that we suffer harm to befall no man, but show him all good and love; 194] and, as we have said, it is specially directed toward those who are our enemies. For to do good to our friends is but an ordinary heathen virtue, as Christ says in Matt. 5:46.
The man who shot the abortion doctor was a murderer. He may have been anti-abortion, but he was not pro-life. As Luther clearly explains, Christians are called upon to be pro-life in all respects.
Tuesday, June 9, 2009
Does the Supreme Court Read John Grisham?
A decision handed down yesterday by the U.S. Supreme Court reads surprisingly like a John Grisham novel. In The Appeal , a polluting company financed the election of a conservative judge in order to shift the balance on a closely divided state supreme court. In Caperton v. A.T. Massey Coal Co., Case No. 08-22 (U.S. 2009), the chairman of a company hit with a $50 million verdict financed the election of a justice to the State Supreme Court of Appeals who was the deciding vote in reversing the judgment. While Grisham's tale (spoiler alert here) was one where money won the day, the U.S. Supreme Court did not allow a similar result.
In the Massey case, a jury awarded a $50 million verdict against the coal company for fraudulent misrepresentation, concealment and tortious interference. The company's chairman took a sudden interest in state judicial races, spending $3 million to help elect a challenger running for the state Supreme Court of Appeals. This contribution was greater than the amount raised by the candidate from all other sources. The challenger unseated the incumbent judge, winning by just 50,000 votes. The newly elected justice then voted as part of a 3-2 majority to reverse the judgment. Not surprisingly, he refused to remove himself from the case.
At first it looked like Massey's chairman had made a pretty shrewd investment. He spent $3 million of his own money to get rid of a $50 million judgment against his company. Talk about return on invested capital!
However, on June 8, 2009, the U.S. Supreme Court said not so fast. Under the Due Process Clause of the Constitution, a judge must remove himself from a case if “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Writing for the majority, Justice Kennedy ruled that this was a case where the plaintiff did not receive due process because his case was decided by a judge who could not be expected to be fair. "Just as no man is allowed to be a judge in his own cause, similar fears of bias arise when . . . a man chooses the judge in his own cause."
The conservative judges dissented, worrying that the court had set too vague of a standard and that courts would be faced with a lot of frivolous motions to remove the judge. However, in this case, I think that the result was spot on. If nothing else, the result was justified by the sheer audacity of the effort to elect a judge prone to reverse the verdict.
I have long felt that electing judges is a dangerous proposition. A small percentage of the voters cast votes for candidates they know nothing about. A catchy name (see my prior blog article about Ken Law) or the right party affiliation can often mean more than judicial qualifications. The system also puts lawyers and judges in an awkward position where the judge must ask for money from the lawyers appearing in his court and the lawyers feel pressured to contribute to the winning candidate. In Caperton v. A.T. Massey Coal Co., the Supreme Court stepped in and fixed an obvious abuse. Unfortunately though, you can't count on the Supreme Court to swoop in to the rescue in every case. The best that you can hope for is that judges will recognize when their contributors' interests are closely implicated in a case and have the courage to step back.
In the Massey case, a jury awarded a $50 million verdict against the coal company for fraudulent misrepresentation, concealment and tortious interference. The company's chairman took a sudden interest in state judicial races, spending $3 million to help elect a challenger running for the state Supreme Court of Appeals. This contribution was greater than the amount raised by the candidate from all other sources. The challenger unseated the incumbent judge, winning by just 50,000 votes. The newly elected justice then voted as part of a 3-2 majority to reverse the judgment. Not surprisingly, he refused to remove himself from the case.
At first it looked like Massey's chairman had made a pretty shrewd investment. He spent $3 million of his own money to get rid of a $50 million judgment against his company. Talk about return on invested capital!
However, on June 8, 2009, the U.S. Supreme Court said not so fast. Under the Due Process Clause of the Constitution, a judge must remove himself from a case if “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Writing for the majority, Justice Kennedy ruled that this was a case where the plaintiff did not receive due process because his case was decided by a judge who could not be expected to be fair. "Just as no man is allowed to be a judge in his own cause, similar fears of bias arise when . . . a man chooses the judge in his own cause."
The conservative judges dissented, worrying that the court had set too vague of a standard and that courts would be faced with a lot of frivolous motions to remove the judge. However, in this case, I think that the result was spot on. If nothing else, the result was justified by the sheer audacity of the effort to elect a judge prone to reverse the verdict.
I have long felt that electing judges is a dangerous proposition. A small percentage of the voters cast votes for candidates they know nothing about. A catchy name (see my prior blog article about Ken Law) or the right party affiliation can often mean more than judicial qualifications. The system also puts lawyers and judges in an awkward position where the judge must ask for money from the lawyers appearing in his court and the lawyers feel pressured to contribute to the winning candidate. In Caperton v. A.T. Massey Coal Co., the Supreme Court stepped in and fixed an obvious abuse. Unfortunately though, you can't count on the Supreme Court to swoop in to the rescue in every case. The best that you can hope for is that judges will recognize when their contributors' interests are closely implicated in a case and have the courage to step back.
Monday, June 8, 2009
Grading the Presidents
After President Obama's first 100 days, pundits were already grading his performance and trying to predict his place in history. All of this strikes me as a bit premature, but it got me thinking about how we measure the presidents. CSPAN recently conducted a survey of 65 presidential historians asking them to rank the presidents. In an effort to make it look scientific, they came up with ten categories such as crisis leadership, moral authority and pursuing equal justice for all. While this approach produces a numerical rank which can be used to state that George W. Bush ranked 27 points below Herbert Hoover, I think that it creates an illusion of precision where none exists. For example, one category is relations with Congress. If a president was blessed with a boneheaded Congress, does that mean that the president gets a low score? Then there's "performance within context of times." What does that mean? Also, how do you compare JFK's 2 1/2 years in office to Ike's eight year term? If a president served just one day, but that was a pretty good one, do you give him the same points as someone who served out a full term?
Instead, I would propose a four category approach which looks at the big picture. What major accomplishments did the president achieve? What obstacles did he overcome? What blunders did he make?
The Great Presidents
A great president is one whose accomplishments permanently changed America for the better or who overcame a crisis which threatened to destroy it. A sub-category of great, would be the good presidents, those who accomplished something noteworthy even if it did not permanently change the country.
Some of the great presidents were (in no particular order):
George Washington. By becoming the first president instead of the first king, he laid the foundation for democracy in this country.
Thomas Jefferson. The Louisiana Purchase made it possible for the United States to become a continental power rather than a few struggling states hemmed in by European outposts.
Abraham Lincoln. Had the courage to fight to keep the nation together.
Frankin Delano Roosevelt. While it can be debated whether his policies helped or hindered the Great Depression, he clearly mobilized and motivated the nation for World War II. Without decisive action by FDR, democracy could have become an endangered species.
The Terrible Presidents
The terrible presidents are those whose blunders permanently damaged the country or who failed to act when action was necessary to save the country. You could argue that this category should be relatively empty since nothing has happened in our relatively short history to permanently mar the nation. As a result, it is necessary to go to the lower level of bad presidents, those whose blunders could have led to permanent damage or whose failure to step up could have led to disaster if someone greater hadn't followed them.
The bad presidents include (in no particular order):
James Buchanan. Although he was a northerner, he championed the rights of slaveowners to move into the Western territories. When the election of Abraham Lincoln prompted southern states to secede, he stated that secession was illegal, but that it was also illegal for the United States to prevent secession. He stood by idly while federal garrison were seized by the Confederates. The Civil War might have been inevitable. However, by failing to act, he laid a bigger burden at the feet of his successor Abraham Lincoln.
Andrew Johnson. He tried to follow Lincoln's path for reuniting the country but screwed it up. While he sought to accelerate the return of the Southern states into the union, he was willing to tolerate the Black Codes which laid the foundation for segregation and denial of civil rights. His mishandling of a delicate situation paved the way for the Radical Republicans to impose military discipline upon the South, which caused the South to become more reactionary when it regained control over its territory. The next century was one when former slaves in the South were free in name but not in right.
Jimmy Carter. Jimmy Carter was a simple man who promised to bring an outsider's innocence to clean up Washington. However, he was woefully unprepared for the job. He talked about malaise while inflation and unemployment skyrocketed. He watched helplessly as Iranian revolutionaries took over our embassy and then botched the rescue mission.
The Insignificant
There should be a third category for presidents who occupied their post without leaving the country any better or worse off than when they took the oath of office. The obvious contenders for this designation are the presidents who died shortly after taking office. What else can you do with William Henry Harrison, who served for just one month? Zachary Taylor who served just 16 months falls into this category as well. I would also tend to place Rutherford B. Hayes, Chester A. Arthur and William Howard Taft into this category because I am not really sure what they did. George H.W. Bush and William Jefferson Clinton will probably fall into this group as well, although it will take history a while to make its judgment.
The Tragic
Finally, there should be a fourth category for presidents who would have been great were it not for a failure which clouded their legacy. There are two obvious presidents who fall within this category.
Lyndon B. Johnson. It took a Southerner pass the Civil Rights Act of 1964. President Johnson presided over what was arguably the second Civil War, laying the legal foundation for civil rights and enforcing it with federal might. Lyndon B. Johnson accomplished what the first President Johnson failed miserably at. Unfortunately, his legacy was clouded by Vietnam. While he inherited this mess from JFK, his policy of throwing hundreds of thousands of troops into a jungle to try to achieve a stalemate turned the nation against him.
Richard Nixon. Richard Nixon changed the landscape of the Cold War era. He ended the Vietnam War (although it took him four years to do so), established relations with China and negotiated detente with the Soviet Union. By reducing the tensions of the Cold War, he ensured that there was not a sequel to the Korean War and Vietnam as well as reducing the risk of nuclear annihilation. While Nixon had his faults, he would have been remembered as a great president except for one thing: Watergate.
Honorable Mention
Unfortunately, my system of four categories doesn't adequately account for one president who deserves recognition. As the nation's first unelected president, Gerald Ford was doomed to fail. Following Richard Nixon and a constitutional crisis made it nearly inevitable that he would be a one-term president. However, this decent man took one for the team. He showed up and he held things together, which is what history demands from a transitional leader. While he would otherwise fall into the category of insignificant presidents, not making things worse during a time of profound crisis is an achievement worth recognizing.
Instead, I would propose a four category approach which looks at the big picture. What major accomplishments did the president achieve? What obstacles did he overcome? What blunders did he make?
The Great Presidents
A great president is one whose accomplishments permanently changed America for the better or who overcame a crisis which threatened to destroy it. A sub-category of great, would be the good presidents, those who accomplished something noteworthy even if it did not permanently change the country.
Some of the great presidents were (in no particular order):
George Washington. By becoming the first president instead of the first king, he laid the foundation for democracy in this country.
Thomas Jefferson. The Louisiana Purchase made it possible for the United States to become a continental power rather than a few struggling states hemmed in by European outposts.
Abraham Lincoln. Had the courage to fight to keep the nation together.
Frankin Delano Roosevelt. While it can be debated whether his policies helped or hindered the Great Depression, he clearly mobilized and motivated the nation for World War II. Without decisive action by FDR, democracy could have become an endangered species.
The Terrible Presidents
The terrible presidents are those whose blunders permanently damaged the country or who failed to act when action was necessary to save the country. You could argue that this category should be relatively empty since nothing has happened in our relatively short history to permanently mar the nation. As a result, it is necessary to go to the lower level of bad presidents, those whose blunders could have led to permanent damage or whose failure to step up could have led to disaster if someone greater hadn't followed them.
The bad presidents include (in no particular order):
James Buchanan. Although he was a northerner, he championed the rights of slaveowners to move into the Western territories. When the election of Abraham Lincoln prompted southern states to secede, he stated that secession was illegal, but that it was also illegal for the United States to prevent secession. He stood by idly while federal garrison were seized by the Confederates. The Civil War might have been inevitable. However, by failing to act, he laid a bigger burden at the feet of his successor Abraham Lincoln.
Andrew Johnson. He tried to follow Lincoln's path for reuniting the country but screwed it up. While he sought to accelerate the return of the Southern states into the union, he was willing to tolerate the Black Codes which laid the foundation for segregation and denial of civil rights. His mishandling of a delicate situation paved the way for the Radical Republicans to impose military discipline upon the South, which caused the South to become more reactionary when it regained control over its territory. The next century was one when former slaves in the South were free in name but not in right.
Jimmy Carter. Jimmy Carter was a simple man who promised to bring an outsider's innocence to clean up Washington. However, he was woefully unprepared for the job. He talked about malaise while inflation and unemployment skyrocketed. He watched helplessly as Iranian revolutionaries took over our embassy and then botched the rescue mission.
The Insignificant
There should be a third category for presidents who occupied their post without leaving the country any better or worse off than when they took the oath of office. The obvious contenders for this designation are the presidents who died shortly after taking office. What else can you do with William Henry Harrison, who served for just one month? Zachary Taylor who served just 16 months falls into this category as well. I would also tend to place Rutherford B. Hayes, Chester A. Arthur and William Howard Taft into this category because I am not really sure what they did. George H.W. Bush and William Jefferson Clinton will probably fall into this group as well, although it will take history a while to make its judgment.
The Tragic
Finally, there should be a fourth category for presidents who would have been great were it not for a failure which clouded their legacy. There are two obvious presidents who fall within this category.
Lyndon B. Johnson. It took a Southerner pass the Civil Rights Act of 1964. President Johnson presided over what was arguably the second Civil War, laying the legal foundation for civil rights and enforcing it with federal might. Lyndon B. Johnson accomplished what the first President Johnson failed miserably at. Unfortunately, his legacy was clouded by Vietnam. While he inherited this mess from JFK, his policy of throwing hundreds of thousands of troops into a jungle to try to achieve a stalemate turned the nation against him.
Richard Nixon. Richard Nixon changed the landscape of the Cold War era. He ended the Vietnam War (although it took him four years to do so), established relations with China and negotiated detente with the Soviet Union. By reducing the tensions of the Cold War, he ensured that there was not a sequel to the Korean War and Vietnam as well as reducing the risk of nuclear annihilation. While Nixon had his faults, he would have been remembered as a great president except for one thing: Watergate.
Honorable Mention
Unfortunately, my system of four categories doesn't adequately account for one president who deserves recognition. As the nation's first unelected president, Gerald Ford was doomed to fail. Following Richard Nixon and a constitutional crisis made it nearly inevitable that he would be a one-term president. However, this decent man took one for the team. He showed up and he held things together, which is what history demands from a transitional leader. While he would otherwise fall into the category of insignificant presidents, not making things worse during a time of profound crisis is an achievement worth recognizing.
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