Tuesday, March 25, 2008

Of Mamet And Chicago. Of Obamas And Elections

March 25, 2008

Re: Of Mamet And Chicago. Of Obamas And Elections.

For someone who strongly disliked the place, and who wanted to and did leave it, I spend a lot of time writing about Chicago. (Even a little may be a lot, considering my dislike of it.) It is difficult to forget how it came about that I left that city for good.

After an undergraduate career that could charitably be described as checkered -- believe me, that is a charitable description -- I had been in the top ten of the class at the Michigan Law School, and had been looking for a job in a private law firm in Chicago, where I grew up. Looking for a job in Chicago, one supposes, was a triumph of inertia; I did not want to go to the behemoth New York, was not smart enough to understand in 1963, as some friends did, that the west coast would be where it’s at, and so just went with the flow in terms of interviewing with big firms in Chicago. But, as happened with most of the other Jewish guys who were in or very close to, say, the top five percent of Michigan’s class of 1963, the big firms interviewed us -- in New York, in Chicago, in other big cities -- but did not hire us, because anti-Semitism was alive and well in the legal profession. There were exceptions, one being a brilliant, blond Nordic looking Jewish guy who was hired by O’Melveny and Myers, a very prominent west coast firm which, perhaps ironically, had had, as one of its moving forces in earlier and mid century, the father of the great writer Paul Fussell. (If memory serves, the father was quite a conservative guy and the family lived in a very conservative area. The great writer, of course, whom I interviewed at his home in Philadelphia for two hours a few years ago for the TV program Books Of Our Time, became completely different politically as a result of his experiences in WWII and, subsequently, in higher education.)

Although there were exceptions, most of us Jews were getting nyets in profusion, while Christian guys whose academic records were nowhere near as good as ours were practically wallowing in offers from major firms. One woman -- a rara avis gender in law classes of 1963 -- who I suppose had an okay academic record and who I think was probably a nice enough person, but whom I never heard referred to as being anywhere near the top of the class, as were the Jews I speak of, even was hired by what I believe was then acknowledged to be one of New York City’s top two or three firms (and which still ranks very highly). While there, she was put in the era’s female ghetto of trusts and estates law, I gather, where she met a truly major New York City banker whose wife had passed away -- let him go unnamed here, but any halfway sophisticated person of perhaps 50 or older would know the name. She married him and has now served on boards for years and years. I always say, cynically but not exactly inaccurately, that of all the smart people in Michigan’s class of 1963 -- which, I’ve often been told, was considered by Michigan for years and years to be its best class ever – she nevertheless was the one who did by far the best after law school.

I’ve written in Thine Alabaster Cities Gleam about what happened to the graduating Jews of Michigan’s law class of 1963, and of what I consider the law school’s culpability in telling us that, if we worked hard and did well academically, the law firms would be open to us because their prejudice against Jews was declining. For the firms to be open to us was at that time a version of the American Dream. We had worked hard. We had done well, even very well. But the law firms were not open to us. Michigan had simply misled us. For its own purposes it had inculcated one fictitious version of the American Dream. To be sure, in part its purposes were laudable: a belief in oncoming liberalization, a hope of declining prejudice. And ultimately, in later years, Michigan became right. Thus it was that, when asked by Attorney General Edward Levi in the early or mid 1970s to find out why the quality of legal work in the Department of Justice had been declining, Bob Bork, after investigating, told Levi the reason was that the law firms were now taking Jews. It is also my understanding that Levi later jokingly said that the way to restore the quality of the Department’s legal work was to reestablish anti-Semitism.

To the comments of Bork and Levi, I would add that another factor affecting the quality of the DOJ’s legal work was that somewhat before they began taking Jews, the law firms began taking Catholics -- yes, Catholics, who were fellow Christians, not even supposedly Christ killing Jews -- were likewise kept out of major law firms for decades. When the firms began taking Catholics somewhat before they began taking Jews, the Department of Justice lost another source of extremely competent lawyers who had come to work for it because they were excluded from private firms.

All of this seeming digression is relevant to, and will come back in the context of, a point I will make later with regard to Barack and Michelle Obama. But, for now, let me return to the thread of how it was that I left Chicago. In addition to interviewing with Chicago firms, I also applied to the Department of Justice honors program in Washington. Whether this was done before, or because, things were looking dim at the firms, is a matter which escapes memory. But anyway, later in the game, when the handwriting on the wall was clear, the DOJ called me in Ann Arbor and offered me a job in D.C. When I hung up the phone, all the dislikes, resentments and rejections of a then young lifetime boiled up, boiled over. My fist slammed the table -- hard -- and I told my wife that I would never go back to that goddamn city (Chicago); I was going to accept the DOJ offer and go to Washington; and that was that. I did go to Washington -- which later began to have its own generalized problems, as the whole country has now known for decades -- and never went back to Chicago, not even when once offered a very unusual opportunity there in 1971 (which also is written of in Thine Alabaster Cities Gleam).

As said, despite a dislike for the city which I’ve never gotten over and which continues to exist even though so many people have now told me for so many years about what a wonderful place it has become, I find myself writing about Chicago more often than one would have thought. It must be a case of you can take the boy off of the farm, but you can’t take the farm out of the boy. Or maybe it’s that, for anybody, one’s youth is ever haunting, the more so when one learns that the customs, styles, language, habits, and ideas of his youth are not widely shared or even shared at all elsewhere, though life has taken him elsewhere. Thus it is, for example, that I sometimes find myself writing about a certain Chicago style of speech and writing that is not widely shared, or shared at all, elsewhere -- that is positively disliked elsewhere in real life, though so many people like it in the fictional (or fictionalized) work of Saul Bellow (whose work I ironically find unreadable). This is the style that mixes vast erudition with very bad language, like the word fuck (which is one of George Carlin’s seven dirty words, isn’t it?). This sort of mixing doesn’t go down in most places I’ve lived; the use of the bad words stamps one with the mark of Cain. But in my recollection it is par for the course in Chicago; no one looks askance. It also represents, to me, a kind of Hofferian dichotomy. I’ve always admired Eric Hoffer, the longshoreman who was also a philosopher. To me this kind of dichotomy -- call it paradox, if you wish -- is often real life, and, when you’ve grown up, as I did, in an environment that is working class in mentality (albeit sometimes people had begun doing somewhat better financially), the intellectual side of the paradox is something to be sought. There is a reason, one tied to my own background, why our law school, at one and the same time, is aimed at providing rigorous, practically oriented legal education and consequent social mobility to people from the working class, minorities, immigrants and mid-life folks, while simultaneously producing very intellectual television programs that have won hundreds of awards, putting on high level conferences on crucial intellectual subjects (usually non-legal, but instead historical or political subjects), putting out a high level intellectual journal on the same kind of subjects, and so forth. The reason I speak of might be called the Hofferian imperative, or maybe, in less high flown words, the Chicago style. On the one hand be practical, help the small guys of the earth, be real, not elitist. On the other hand, be intellectual. That’s what it’s goddamn all about (if you get the joke).

My latest exposure to the dichotomy has come in reading part of a biography of, and a book of essays by, David Mamet, the famous playwright, who grew up in Chicago. (One of his most famous works, Glengarry Glen Ross, is set just a short distance from where I grew up on Chicago’s North Side. Joseph Epstein and Ira Berkow grew up in the same neighborhood at the same time, but have entirely or mainly managed to escape writing the bad words I use. Ah well, eff it.) Time and time again in the biography (by Ira Nadel), and occasionally in the book of essays, the dichotomous Chicago combination of high and low culture is discussed. I shall quote what is said fairly extensively: this is due to an insecurity born of fear of being said to mislead. The quotes allow you, the reader, to judge for yourself whether the description of views provided here is right or wrong (and so is, in regard to principle applicable in a different context, quite the opposite of the Harvardian and other plagiarism (and intellectual theft) so often decried in these postings because they inherently mislead as to authorship and are thus implicitly inaccurate). Sometimes the dichotomy is highly explicit in the quotations. Sometimes it is implicit but inescapable:

It [Chicago] was also the home of Harriet Monroe’s modernist journal,
Poetry (Ezra Pound, foreign editor) and Playboy, edited by Hugh Hefner.
Such incongruities appealed to Mamet, a man who is South Side street-smart
and well-read.

Mamet presents himself as an average Joe and an intellectual. His favorite
hat for years was a crumpled baseball cap with “Twelfth Night” written on
the front. He will say “ain’t” in one sentence and quote Tolstoy in the next.
Nadel, David Mamet, p. 3.

* * * * *

Later in his writings, the street tough style would mix with the bohemian.
Nadel, p. 4.

* * * * *

Later work has alternately been vilified as foul and obscene and praised
as profound and honest. Nadel, p. 8.

* * * * *

The hostility and profanity of his plays . . . . Nadel, p. 18.

* * * * *

Mamet embodies Sherwood Anderson’s remark that “for a long time
I have believed that crudity is an inevitable quality in the production
of a really significant present-day American literature.” Nadel, p. 5.

* * * * *

Chicago united the populist and the intellectual, a union that Mamet still
praises. It is the citizen’s willingness to discuss Nietzsche or Kipling in
any bar, and the knowledge that literature is an organic part of the people.
Individuality defines its own culture, with the autodidact the ideal,
especially when he absorbs the ideas of a “European freethinker”
(CA 56). This liberalism, coupled with earlier celebrations of the city’s
democratic roots -- see William Dean Howells or H.L. Mencken
on its early life -- dominates its literary landscape. Nadel, p. 17.

* * * * *

The Chicago style is harsh because it does not tolerate evasion.
Chicago audiences are, in turn, difficult to fool; they want things
to be on the level, to hear things straight (Case 29). Nadel, p. 5.

* * * * *

The program was Chicago. It was the Chicago of the living
culture of the mind. The Chicago of Hutchins, and the
tradition of free thought: the Hyde Park tradition of
Thorstein Veblen and Clarence Darrow, of Vachel Lindsay, of Dreiser.

The idea in the air was that culture was what we, the people, did. The
idea was -- and is -- that we were surrounded by culture. It was not
alien to us. It was what the people did and thought and sang and wrote
about. The idea was the particularly Chicagoan admixture of the
populist and the intellectual. The model, the Hutchins model, the
Chicago model of the European free thinker, was an autodidact: a
man or woman who so loved the world around him or her that he
or she was moved to investigate it further -- either by creating
works of art or by appreciating those works. Mamet, The Cabin, pp. 55 and 56.

Now, when I grew up in Chicago, the cultural part of Mamet’s (far broader) experience was not part of my world. The more’s the pity for me. Perhaps my feelings about the city would be different if it had been. But what was part of my world was the dichotomy of gutter speech and serious subjects, what Sherwood Anderson called the ‘“crudity [that is] an inevitable quality in the production of a really significant present day American literature.’”

Mamet also had another experience in Chicago that was similar to mine, an experience that shapes views which, I have found, and have written in Alabaster, do not go down well in most of the circles of America in which I’ve lived as an adult (or, for that matter, in which I’ve lived from my junior year in high school onward). Let me quote from Nadel:

Mamet’s father, Bernard, was born “right off the boat” and raised
during the Depression. Bernard’s family had little money and brought
nothing from the shtetl except a soon-to-be-despised language, Yiddish.
Bernard’s father, however, left his wife, Calara (Mamet would name
his third daughter, Clara, after her), who then had to bring up the family
by herself. The poverty transformed the son, Bernard (Bernie), into a
driven man: he put himself through Wilson Junior College and
“bluffed” his way into Northwestern Law School using a forged transcript.
He ended up first in his class, edited the law review, and was inducted into
their legal honor society. After graduation, he worked for the law firm
then headed by Arthur Goldberg, who would become a Supreme Court
Justice and then U.N. Ambassador. At the time, the firm represented
the United Steel Workers Union and later the AFL-CIO. Nadel, p. 12.

* * * * *

Mamet’s sympathy for the underdog and working stiffs derives in
part from his father’s identity with a world Mamet saw firsthand.
Occasionally, when Bernie went to visit a union leader, the young
Mamet would go along, observing the talk, attitudes, and mannerisms
of these working men. The family was “comfortably middle class”
but Bernie Mamet was conscious of “the fear of poverty,” which he
shared with his family. Nadel, p. 13.

* * * * *

As a labor lawyer, Bernie Mamet was constantly aware of workers'
conditions and exploitation. He put in long hours at his law office
at 327 S. LaSalle in downtown Chicago, working continuously to
secure his situation, always feeling under pressure. The strong,
upwardly mobile aspirations of the parents also meant demands on
the children to succeed, Bernie Mamet never let them forget how
the disadvantaged had to struggle and rely only on themselves to
succeed. Nadel, pp. 14-15.

Finally, there is the question of being an outsider -- but one with honest feelings -- and cynicism and sentimentality. Here is what Nadel says:

The Chicago style mixes a survivor’s cynicism and a streak of
sentimentality without obliterating honest feelings. A writer in
Chicago is not in the center of a national literary culture but
is on its margins “not by absorbing the national tradition but by
pretending to know nothing of it.” Mamet, as he repeatedly states,
feels like an outsider, the result of being a Jew, a writer, and a
Chicago author: “But the question,” he emphasizes, “is not how to
get into the country club. The question is ‘what’s going on here?” Nadel, p. 25.

I would suppose it needless to say, at least to those who read these posts with any regularity, or even now and again, that this writer is an outsider, partly stemming from being a Jew, with strong feelings honestly held, who is both cynical towards, but one fears unhappily accurate about, what goes on in this country, and is not untouched by sentimentality. Holmes said about his generation of Civil War veterans that they had had a piece of great good fortune: When they were young, their hearts had been touched by fire. Indeed. Indeed. It is just so for others too, though for different reasons.

* * * * *

All of this, believe it or not, brings me to Barack and Michelle Obama.

I have described above what happened to Jews of the Michigan law class of 1963. This had been par for the course for decades before 1963. As well, for decades Jews couldn’t move into lots of residential areas, book into lots of hotels, join lots of country clubs, gain admission to lots of colleges, or make a career in engineering, in banking, or in big business. Then, after 1963, this country fought horrendous, useless wars, has killed people literally by the millions, has rewarded crooks with billions of dollars, has let the middle class go downhill (as they lose jobs too), rarely punishes, and even more rarely punishes severely, the white collar and political criminals who do these things, although these horrors are unlikely ever to end until people like Lay, Ebbers, Kozlowski, Bush, Cheney, Rumsfeld, Wolfowitz, etc., etc. go to the slammer or, in the case of the criminal warmongers and torture mongers, go to the gallows. No, not everything is bad. For yes, there has been some material progress -- we have the internet, better TV sets, better cars, cell phones, and iPods, although we probably eat far less healthily. Yes, many African Americans have a better chance in life than before, viz. the Obamas themselves. Women too have a better chance. Nonetheless, as a general matter, this country has an exceptional amount to be ashamed of, an exceptional amount.

But when Michelle Obama -- who, as an African American, has even more to be angry about than even the Jews of my generation -- uttered this truth by saying that her husband’s candidacy and its reception were the first time she had ever been proud of America, she caught hell in the media and elsewhere. Giving her hell in the media, among the pols, in the right wing talk show/TV machine is another triumph of the effing Yahoos who are everywhere in this country.

Michelle Obama is a native Chicagoan. In the Chicago style remarked by Mamet’s biographer, she spoke in a way that “does not tolerate evasion,” in a way that is “on the level,” so the audience would “hear things straight.” And for that, for telling the truth straight, she caught her lunch.

Well, to put it in the traditional Chicago style, fuck that.

This is not and for decades has never been a country that, to repeat Nadel, wants “honest expression of the text,” that “does not tolerate evasion,” that “want(s) things to be on the level, to hear things straight.” Those traits are Chicagoisms. They are not Americanisms. Americanisms are the lie, the bull shit, the expression of falsehoods that sound good. Michelle Obama’s problem is that she told it straight, told it as she feels about it, as she feels about it with much justification. America’s problem is that it does not want to discuss whether there is truth in what someone says, but instead wants to hear only bullshit that makes people thoughtlessly think well of what we do. Well, I say good for Michelle Obama.

To be sure, it is perhaps unseemly for Obama to say her own husband’s candidacy and its reception is the first time she’s been proud of America. That is surely inconsistent with the modesty taught in the Chicago of my youth, a trait which apparently reflected, at least in part, the Swedish influence in the Midwest. (And a trait which, like all Washingtonian political, media and legal types, Bob Woodward, originally from the Chicago area, has managed to extensively overcome, shall we say, if he ever had it to begin with.) But even if it were unseemly for her to say it in the context where she did say it, Mrs. Obama had vast truth as justification, and by rights people ought to debate the truth of her remark, instead of crucifying it for merely being said.

I gather, moreover, that lots of African Americans hold feelings similar to hers, which they express privately among themselves. And so do a lot of whites have similar feelings, although we almost never express them, even among ourselves, because we live too much in the all pervasive white yahoo world or its offshoots.

As for her husband’s views on her view, one cannot really know for sure at this point. I gather he has made much of his career as a “bringer together” of people, perhaps even as far back as Harvard Law Review days, if memory serves. (I believe I first heard about him at that time of his life, when he was written up in some publication or other because his achievement of being a black President of the Harvard Law Review was so rare, unique in fact.) He is still presenting himself as a bringer together.

What is more, I have to say that, unlike the derision with which I regard most political speeches, even all other political speeches, I think his recent speech on race was tremendous. It was the best political speech of my adult lifetime. True, it was way too long. True, though on the one hand he defended Reverend Wright -- many, though not all, of whose views are, like Michelle Obama’s one gathers, widely shared in the black community and among lots of us whites -- on the other hand he threw Wright under the bus overmuch, threw him under the bus many more times than he had to in what I took to be pandering to widely prevalent yahooism, pandering to people whose votes he wants and who are determined to loathe Wright.

Wright’s style of speech and presentation by the way, for which the Yahoos hate him, certainly seems to be what one is reading about when one reads of the early days of new white Protestant religions in America, although his style and presentation is foreign to today’s white churches. Moreover, it is a style which, one reads, is common to the particular denomination, especially in South Side Chicago, and has much in common with Sherwood Anderson’s remark that ‘“crudity is an inevitable quality in the production of a really significant present day American literature’” (emphasis added), i.e., in the production of real truth. These are still more reasons why Obama was far too excessive in the number of times he threw Wright under the bus.

But as to what Obama really thinks despite his toing and froing on Wright, who knows? It is admittedly a little hard to believe that someone who has lived for years with a woman who holds the views his wife holds, does not share those views to some major extent. It is also hard to believe he does not share to a significant extent the views of a pastor whose church he went to for so long and to whom he apparently was close. In fact, in the circumstances it might be thought somewhat disgraceful and hypocritical for Obama to have thrown Wright under the bus at all, let alone as much as he did.

Maybe, however, people ought to focus on a different point. Assume, as I do, that Obama agrees extensively with his wife and his long time pastor. Then the significant point might be that he seems willing to rise above, to put aside, bitter if justified views, and to work for and seek common meeting grounds. I know that I can’t and wouldn’t rise above and put aside the justified bitter views about what this too yahoo country has been and done. As for other candidates, Hillary Clinton claims she wants to change things, but can’t even admit she ever made a mistake, and is a known dissembler for advantage, if not an outright liar like her husband. Is that what you want for President? As for McCain, he not only has done bad things when he thought it would help him (viz. the Keating business, joining Bush’s war by beating its drums in the last year or two), but proclaims that he will do more of the same -- the 100 year war, for example. Is that what you want for President? Especially when, as Bill Maher said, and as is so common in McCain’s (and my) generation, he seems to believe in war as the natural state of things.

So maybe the crucial point is not what Obama believes in his heart of hearts, but the fact that he seems willing to rise above what he thinks there, in the interest of a greater good.

* * * * *

There is one thing, however, that Obama has never shown any sign of believing, but which one thinks essential. It is not something any current candidate has ever given any sign of believing, although it is a lead pipe cinch America will never change in the long run without it. The failure of change without it is a lead pipe cinch because, over the long run, America never has changed without it since the days of Jackson -- it never has changed without it despite the crookedness of the gilded age, of the 1920s, of the Johnsonian, Nixonian, Kissingerian days, of the Reagan Administration’s Iran Contra mess, of Bush II’s criminality, etc. What I am speaking of is the necessity, alluded to earlier, that the people who lie, cheat, steal, rob the middle class, defy laws of war and American domestic law about war, be prosecuted, be put in the slammer, and go to the gallows, when and if found guilty of a crime. Unless and until this starts being done, and I stress the need for the gallows when the crime warrants it, we will never be without major crooks, without causers of major disasters, in big business, in government, in economics and in war. Indeed, people like this are preening now, are not so secretly delighted now, because they got rid of their nemesis Spitzer due to his own recklessness, stupidity, arrogance, unhappiness at home, or whatever it was that caused him to do things that were simply a disaster waiting to happen. Nor has there been much comment on what seems to be the somewhat unusual steps taken by the FBI to insure (ala Don Riegelman and others?) that this thorn in the side of big business and Republicans be removed from public life.

The fundamental point remains that unless and until we start putting those who effed over scores of millions of us in the slammer for years on end -- and not in one of those federal hotel type slammers either, but in real slammers -- and unless and until we start sending the even worse criminal warmongers and torture mongers to the gallows, we will in the long run keep getting more of the same. We will recoil from one disaster only to find ourselves facing a similar economic or warmongering disaster five or ten or twenty years from now. As to the economic and business side of it, by now nobody needs persuading that one disaster can and does follow another. As for the war mongering side, who, if he or she lived through Viet Nam, would have thunk it could happen again, yet Bush and Cheney and their fellow mental dwarfs saw to it that it did.

Obama gives no sign about accepting, let alone believing, any of this. Nor, being a practical politician, does he ever talk about it. Nor, one is sure, does he want to talk about it lest yahoos have a field day on behalf of Clinton and McCain. It is up to those who are willing to accept the Chicagoesque but non-American habit of truth and straight talk to keep pushing this, to push it so as to prepare the ground for it if and after Obama is elected, while hoping for such election because Obama does seem the only candidate likely to change much of the abhorrent in this country. But a permanent shift away from the abhorrent -- here no less than in countries which once were dire threats to a decent world but now seem at least as good democracies as we are, if not perhaps even better ones, Germany and Japan -- will require prosecution and maximum punishment of those responsible for the criminal disasters.*

* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

In addition, one hour long television book shows, shown on Comcast, on which Dean Velvel, interviews an author, one hour long television panel shows, also shown on Comcast, on which other MSL personnel interview experts about important subjects, conferences on historical and other important subjects held at MSL, presentations by authors who discuss their books at MSL, a radio program (What The Media Won’t Tell You) which is heard on the World Radio Network (which is on Sirrus and other outlets in the U.S.), and an MSL journal of important issues called The Long Term View, can all be accessed on the internet, including by video and audio. For TV shows go to: www.mslaw.edu/about_tv.htm; for book talks go to: www.notedauthors.com; for conferences go to: www.mslawevents.com; for The Long Term View go to: www.mslaw.edu/about­_LTV.htm; and for the radio program go to: www.velvelonmedia.com.

Friday, March 14, 2008

Re: Hypocrisy Holds High Carnival, And Other Recent Travesties Of The Political/Media Complex.

March 14, 2008

Re: Hypocrisy Holds High Carnival, And Other Recent Travesties Of The Political/Media Complex.

I gather it is common to become less tolerant of nonsense, stupidity and their like as one gets older. Never having had a high threshold for these things to begin with, I find myself getting even shorter with political bullroar (a 1950s Chicago word), and with political stupidity, in my late 60s. So here comes some unvarnished, sometimes (even mainly?) politically incorrect sentiments.

Let’s start with the imbecile, Geraldine Ferraro. Here is a woman whose husband and son were indicted and sometimes were convicted of crimes ranging from extortion to falsification to possession of a drug, and who herself had connections to her husband’s business and had to pay back taxes owing. Yet somehow she was a vice presidential candidate -- maybe she rose above it all? -- and said, of one of her husband’s indictments and his guilty plea, that they “brought to an end the difficult period my husband has endured stemming from my historic candidacy.” Right, it was all because of her “historic candidacy.”

Now, two decades later, this loser, who had some kind of merely honorary position with Hillary -- in an effort to mount some sort of comeback? -- opens her mouth about Obama. She said:

If Obama was a white man, he would not be in this position. And if he was a woman of any color, he would not be in this position. He happens to be very lucky to be who he is. And the country is caught up in the concept.

And she also is quoted thusly:

“Every time that campaign is upset about something, they call it racist,” she said. “I will not be discriminated against because I’m white. If they think they’re going to shut up Geraldine Ferraro with that kind of stuff, they don’t know me.”

Now there are two possible major reasons for Ferraro’s first statement. One is that Obama is not qualified because he has been in the Senate only a shade over three years. If this was her reason -- and, forgive me, but I don’t think this really was her reason -- she is a hypocrite. For she forgets that she was only in the House of Representatives a bit over four years when she was picked to be Vice President, an official who can become President in the blink of an eye, in the flash of a weapon.

Of course, it is far more likely, and apparently most of us believe, that her reason concerned race, in which case it has two possible sources. One is that Obama gets votes because he is black. Well, big effing deal. Hillary gets votes because she is white. Hillary gets votes because she is a woman. Ferraro was nominated for Vice President strictly because she was a woman. For scores of years, Irish men and women, Italian men and women, Jewish men and women, Catholic men and women, WASP men and women and so on have gotten votes because they were Irish, Italian, Jewish, Catholic, WASP or so on men and women. But it’s not okay for Obama to get votes -- from blacks or whites -- because he is black. That is sheer racism.

But, as said, there is yet another possible racial source for her comment. It is that Obama is not smart enough to be running for President, is not competent enough. This would be recognized, and he would lose, if he were either a white man or, because of prejudice against their sex, if he were a woman of any color. But since he is a black man, nobody will say, recognize or care that he is not smart enough to be President.

Now, this possible source for her comment is truly offensive because Obama is likely far smarter than either Hillary or McCain, and probably is a lot smarter than anyone else who has been in the race on either side (with only one or two merely possible exceptions of guys who conceivably could be as bright as him). I have written of this before, have pointed out that, while nobody talks about it, Obama succeeded mightily in competition with the brightest of the bright at Harvard Law School, where he was the President of the Law Review, while Hillary -- and Bill -- were no great shakes when facing such competition at Yale.

You know, I’ve spent a lot of years railing against the kind of elitism just reflected in these statements about succeeding at Harvard or Yale. But the older I get, the more I think that, in politics, we should be looking for the kind of academic records that Obama had -- just as the English used to make a point of mentioning it when a politician had scored “firsts” at Oxbridge. For politics has now long been the home of the second rater, the second or third rate mind who gets us in trouble because he is dumb. The first rate minds generally want nothing to do with politics; it is too corrupt and sycophantic for them. They want to succeed, and/or make money, in law, in business, in medicine, in scientific or technological research, and so forth. They want nothing to do with a rotten business like politics. So when we do find a politician whose academic career shows a first rate mind -- which Bush Jr.’s did not, Kerry’s did not, the two Clintons did not, McCain’s does not, etc., etc., ad infinitum, ad nauseum -- we should embrace the person. And Obama looks to be one to embrace.

Now, two things must further be said in this connection. I am certainly not saying that everyone who performed well or even brilliantly in academia has the tools to be a president, has the judgment, personality, speaking ability, and stamina that are needed. Such a statement would be absurd. What I am saying, rather, is that if a politician has a brilliant academic career and these other needed attributes, we should likely embrace him or her, and we should be wary of a politician who wants to be president, and may have needed characteristics of stamina, speaking ability, desire, etc., but has not shown real brains such as are needed to do really well in academia.

Nor am I saying that brains are the possession only of those who do really well in academia. This too would be false. Lots of people did not do so well in academia for one reason or another, or did not even have an opportunity to get a higher education (e.g., because they were poor), but are really smart. Indeed, I often get emails from people (in response to postings) who plainly don’t have higher educations but obviously are quite smart nonetheless.

So what we are left with regard to Ferraro is that she opened her big mouth, said things showing hypocrisy or racism, and ended by appearing to argue, stupidly, that she is being discriminated against because she’s white, and saying that “If they think they’re going to shut up Geraldine Ferraro with that kind of stuff, they don’t know me.” Geraldine, we know you. Shut up.

Let me turn now to a granddaddy of hypocrisy, the Spitzer affair (so to speak). That Spitzer himself was a hypocrite is beyond argument, since he publicly excoriated and prosecuted prostitution but was (or became) a customer of prostitutes. He was like the Republican gays in Congress who excoriated homosexuality while engaging in it. Of course, if memory serves, their positions on other issues were sometimes bad, while Spitzer’s were heroic (albeit he apparently was purely obnoxious in pursuit of his aims). But he, and they, had very similar forms of hypocrisy in common.

As well, the political/media reaction to Spitzer’s actions is the very height of hypocrisy if viewed from what could rightly be called the systemic standpoint -- from a standpoint that looks at a plethora of American actions, not just Spitzer’s patronage of prostitutes. In seeing vast hypocrisy in the body politic and the political/media complex, I find, to my amazement, that the views of a famous rabbi, Michael Lerner, the editor of Tikkun, extensively coincide with my own. (Lerner’s views are set forth in OpEd News in a piece aptly entitled Elliot Spitzer and America’s Ethical Perversity). This is a country which perpetrates, condones, and/or ignores the most awful conduct. We are fighting wars and killing people by the gross, but nobody with power gives enough of a damn to put an end to it, neither the worthless Democrats, nor the courts, nor anyone else. Indeed, it is sometimes claimed the public cares less and less, and even left wingers profess that we cannot leave Iraq lest matters get worse -- the old Viet Nam argument that led, and leads, to ever present war instead of leading, for example, to dividing the country into three parts, giving each of the three contesting ethnic or religious groups its own part, and getting out. The Republican candidate, McCain, would continue fighting for a hundred years -- of him it was recently said he never saw a country he did not want to bomb or invade, and that (being third generation Navy) he thinks war the natural state of affairs -- as, evilly, do so many of my generation. Nor do many stop to realize that war, about which people care so little because it is not them that go to it, contributes mightily to the horrendous economic situation that it is said they do care about.

Our hypocrisy extends to economics, where we favor or permit policies that are screwing the poor and the middle class while enabling the already incredibly rich to get even richer. Were Jesus to come back today and see this, who can doubt he would quickly depart in horror? Our policies entrap people in poverty by denying them a decent education as the way out. Our medical profession is a shambles. The ignorant mental slut in the White House holds back vital medical research. The votes of the poor and minorities are taken away from them defacto or dejure. What decent person can doubt that Lerner is right when he says “that there is no moral outrage at the entire system that produces this impact, is America’s moral perversity”? What decent person can doubt that Michelle Obama has damn good reason, and has had it all her life, not to be proud of America? There is one person who doubts this about Michelle Obama, of course, because Obama went to Harvard and is a successful lawyer, experiences which, one gathers, are supposed to disqualify her from seeing the truth. That doubtful person is the super reactionary Dorothy Rabinowitz of the Wall Street Journal, who never met a reactionary idea she didn’t love. But, then, I asked what decent person can have doubt.

So, as Lerner and this writer agree, there is truly vast systemic hypocrisy. There is also, in connection with the Spitzer case, a hypocritical refusal to discuss what may be the truth about the relationships between men and women. This refusal to discuss the possible truth has gone on here for probably hundreds of years and is rampant in the Spitzer matter.

Can anyone be unaware that, on a by and large basis, on the basis of something that is generally true though not always true, men and women see the world differently? (Illustrating this undoubtable fact in connection with the Spitzer case, last Wednesday a New York Times article by a woman began by claiming that men and women viewers had quite different reactions when the story broke on Monday, March 10th, that initially the opinion shows were dominated by men so that there was “a lot of talk about ‘victimless crime,’” and that it was not until Tuesday morning’s shows “that female commentators could really unload, and they did” on such subjects as “‘Why Men Cheat’” and whether Spitzer’s wife was right to stand by him. (Like Hillary did when she lied -- by saying something like she was no Tammy Baker standing by her man -- so that Bill could become President and so she could have a shot at it later). But that men and women often see the world differently is only the part of the story that people will talk about. What they hypocritically refuse to talk about is the possibility that, not only are men and women different, and not only do they see the world differently, but they are so different and see things so differently that, as a general matter, after the flush of first love and sex have passed, men and women in a supposedly romantic relationship do not even like each other and sex is dead. If they did continue to like each other, how come so many husbands and wives barely speak to each other? (If memory serves, in his autobiography, which I read perhaps 40 years ago, Arthur Krock, who was the New York Times’ leading columnist before and around the middle of the 20th Century, had an unforgettable description of his father refusing ever to speak to his mother. It was quite remarkable.)

So, if it is possible that as a general matter men and women in a “romantic” relationship don’t like each other after a sufficient period has passed, and sex almost certainly is largely dead, how does this bear on Spitzer? Well, in the obvious way that nobody will talk about, except, God help me, Dr. Laura Schlessinger. (When I find myself agreeing with her, it may be time to reconsider my own position.) Here is what the Times said, in part quoting Dr. Schlessinger:

The biggest issue [on the TV talk shows) was not whether the governor would resign or face criminal charges. It was whether Ms. Wall Spitzer was right to stand by him, and even more urgently, whether all husbands stray, and why. It got testy at times.

“Are you saying the women should feel guilty, like they somehow drove the man to cheat?” a visibly aghast Meredith Vieira of Today asked Dr. Laura Schlessinger, a radio host.

Dr. Schlessinger replied, “Yes, I hold women accountable for tossing out perfectly good men by not treating them with the love and kindness and respect and attention they need.”

There it is: the elephant in the room that nobody in the political/media complex will discuss or even speculate about -- and for which other female media people (besides Vieira) blasted Schlessinger -- even though they speculate about every other thing connected with the matter. Did Spitzer have a good marriage (unlike most people, I would judge) or did he have an unhappy marriage, with little sex, that caused him to seek out prostitutes?

We probably are unlikely to ever know the answer to this question, and that may be a good thing. But it doesn’t mean the question doesn’t exist. Most women, I would hazard, like Meredith Vieira, wouldn’t see it this way. And men and women alike are quick to say, probably rightly, that men are driven by their Johnsons and that Spitzer was, besides, an arrogant guy who thought he could get away with it.

But the question does not down because of these easy answers. Okay, Spitzer was a man, and men want sex as much as possible. (Do you remember Lyndon Johnson’s comment that he had more women by accident than John Kennedy had on purpose?) And, okay, Spitzer was an arrogant guy, and judging from what has appeared in the papers, sometimes a mean, mouthy guy too (even if also a great white hope of liberalism confronting what I think Theodore Roosevelt or Franklin Roosevelt called economic royalists). But Spitzer presumably was not completely stupid, must have known he was taking a huge risk that could destroy his political career (and he doubtlessly wanted to ultimately become President), and, reflecting knowledge of danger, tried to take steps (one of which he couldn’t manage to achieve) to hide what he was doing. Why, then, did he do it in the first place -- unless one assumes he simply was crazy, unbeknownst to the rest of us. Well certainly, though Americans won’t talk about it, one possibility, at least, is a very unhappy, sexless or nearly sexless home life (plus, as one colleague often says at the lunch table -- jokingly, but not really as a joke -- in our country affairs simply require too much of an investment of time, so that very few really busy persons have time for one).

While, to reiterate, we probably will never know the situation in Spitzer’s marriage, and everything is mere speculation, there are signs that have surfaced. As I understand it, his wife wished he had gone into his father’s business and made another pile of money instead of going into politics. She never wanted to be a “political wife” (but, like Howard Dean’s wife, would probably have caught hell from the crumbbums of the political/media complex if she had declined to be a “political wife”). She sacrificed her own lucrative career to raise their kids and be a political wife, and apparently is not happy about the sacrifice or the fact that all her outside work is now charity stuff done for free. And she urged Spitzer not to resign, when it is transparent that his resignation nullifies -- makes a farce of -- all the undesired sacrifices she made for her husband’s career. Add this all up, and it does not seem to spell a marriage made in heaven. (Few marriages are so made, of course). And, though hypocritical America refuses to talk about the generally existing problem, but buries its head and mind in phony pieties one way and another, it could at least conceivably provide the reason why Spitzer risked career-destroying conduct.

And one thing we can be sure of is this. Until America begins to discuss the general problem, it will never be solved -- if, indeed, there is a solution. (Maybe the French have one -- their attitudes towards sex are far different than ours and, many think, far saner.)

I shall close with a brief discussion of a subject whose grave importance, combined with its comparative (not total, but comparative) inattention by the political/media complex, yet again shows our systemic hypocrisy. I speak of the firing of Admiral Fallon -- but please to call it resignation, to crib part of Tom Lehrer’s phrase about plagiarism. It is claimed, especially by some well meaning former generals, that the firing occurred not because Fallon disagreed with his Commander-in-Chief about a possible war against Iran, but because he disagreed too often, too vehemently, and, most particularly, publicly -- outside of channels. To which my answer is: gimme a break. Do you think Petraeus would be fired for stating his views often or strongly to Bush, or stating them publicly? Even with vehemence publicly? Of course not. Petraeus says what the claptrap boob in the White House wants to hear. He would never be fired for saying it either within or outside of channels, no matter how often and how publicly vehemently. (At least not until Bush changes his own mind.) Fallon went the way of Shinseki and Lindsey: that is, you disagree and you’re gone.

More importantly, why did Fallon speak publicly, and what, therefore, does his firing portend? Fallon’s not a fool -- quite the contrary, apparently. He knows what happened to Shinseki. He certainly knows what happened to MacArthur. He may even know what happened to McClellan. So why did he risk his position and an end to his career by speaking out publicly? The logical answer, one that generals who speak of staying within channels and the supposed likelihood of being more effective that way will not want to hear, is this: Fallon -- an insider who is in the know -- is so worried about the Administration’s desire and plans to go to war with Iran, and feels so concerned over his inability to stop this by arguments within channels, that he felt he had to speak out publicly in an effort to stop it. I’m sorry, but unless and until proven wrong, this seems to me far and away the most likely possibility. But one does not hear word one about this from, on or in the political/media complex. Hypocrites and fools, virtually the lot of them.

War with Iran could well be nuclear or partially nuclear, you know. One would think the political/media complex would be hellbent to inquire into and discuss the reason(s) Fallon left before Bush and Cheney perhaps start telling us that Iran (like Iraq) has or will get and use WMDs, that we have no choice, that we must immediately act preventively, etc.

The media doesn’t show much interest in the problem, however, and it remains to be seen whether relevant committees of Congress will have Fallon appear before them to discuss the matter. So far, at least, we’ve gotten much discussion of Ferraro, even more about Spitzer, but comparatively little about the truly important subject of a possible war with Iran*

* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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Wednesday, March 12, 2008

Re: Alexander Pekelis, Arthur S. Miller, And Today’s Supreme Court

March 12, 2008

Re: Alexander Pekelis, Arthur S. Miller, And Today’s Supreme Court.

In recent months I read a book which mentioned the name “Alexander Pekalis.” It was a name I had not seen referred to in print in over 40 years. The author, whether because of a mistaken impression or a typographical error, spelled the name wrong. It is not Pekalis. It is Pekelis.

I first heard of Alexander Pekelis in 1964. I was working on an ocean shipping rate conference matter for the Antitrust Division of the Department of Justice, and read an article on relevant matters in the University of Chicago Law Review by John McGee, who became a reasonably well known economist. In the same volume of the University of Chicago Law Review was an article coauthored by Arthur S. Miller. He was not the Arthur Miller who was the playright and one of Marilyn Monroe’s husbands. He was not the Arthur Miller who taught at the University of Minnesota Law School, then at the Michigan Law School, and now has been for decades a famous professor at the Harvard Law School. He was Arthur Selwyn Miller who taught at the Emory University Law School and then at George Washington University’s Law School.

Miller’s article was entitled The Myth of Neutrality In Constitutional Adjudication. It assailed a doctrine called “neutral principles,” which at the time was an intellectual fad du jour after having been enunciated by a then famous law professor, Herbert Wechsler, in 1959. Without describing this doctrine, let me say only that it was a bête noir of liberals, who feared that it would stop the social progress then being made through law (and in the Supreme Court particularly), but was so silly (like lots of intellectual fads du jour) that it later was devastated by a conservative, Richard Posner, in what possibly was the greatest single demolition job I have ever seen worked upon a doctrine.

I read Miller’s piece because, unlike what happens to so many law students, my years at the Michigan Law School (1960-1963) had not succeeded in knocking out of me the liberalism and concern for social justice of my youth. (The non knockout is described in Volume I of Thine Alabaster Cities Gleam.) Interested in the use of courts as an instrument for social justice -- historically a mainly false hope, but one that was fostered by actions of the Warren Court from 1954-1968 that were contrary to the tide of both prior and subsequent Supreme Court history -- I read Miller’s piece to see what it said.

Without elaborating nearly 35 pages of argument, suffice to say that Miller’s main point was that it is humanly impossible for a judge (or any human being) to act “neutrally.” One’s (inevitably non-neutral) values always came into play, said Miller. (Would anyone who is knowledgeable really contest that today in the case of judges?) Towards the end of the piece the liberal Miller argued that decisions should be weighed “in terms of their social adequacy,” which would require supplementing straight legal doctrine “with relevant facts and principles from the social sciences.” In this connection Miller mentioned a proposal “by Alexander M. Pekelis, whose article calling for a ‘jurisprudence of welfare’ has lain neglected for over fifteen years.” That was the first I had heard of Alexander Pekelis.

Naturally, I got Pekelis’ article, entitled The Case for a Jurisprudence of Welfare. I can see the pages of the article in my mind’s eye to this day. It was in a journal published by the National Lawyers Guild. If memory serves, the Guild had been started around 1937 as a counterweight to the conservative American Bar Association, and, during the midcentury Red Scare of the late 1940s and 1950s, had been placed on the Attorney General’s list of subversive organizations. (Sic semper liberales.) It made a comeback during the Viet Nam War and, I gather, remains somewhat of a force to this day.

When reading Pekelis’ piece, I learned from some type of editor’s note that he had been killed in an air crash at Ireland’s Shannon Airport in 1946. This seemed doubly a tragedy: any such human death is tragic, and in Pekelis’ case the crash silenced what obviously was a great liberal voice besides. But his death at Shannon was all I knew about Pekelis’ life.

When seeing the reference recently to the misspelled “Alexander Pekalis” (I can’t even remember what book I saw it in), my curiosity was whetted to reread The Case for a Jurisprudence of Welfare. The only place our library could find it was in a 1950 book, which we borrowed from the library of Amherst College, called Law and Social Action[,] Selected Essays of Alexander Pekelis. The book’s cover says it is “A Publication of the New School for Social Research” and is from the Cornell University Press, both reasonably heady institutional names. It was edited by the Milton Konvitz, a pretty well known law professor of his day. At the back of Amherst’s copy of the book was a permanent sign-out slip, of the kind that used to be omnipresent in library books, recording the names of people who signed it out and the dates they did so. There was only one name on the sign-out slip, and he had signed it out in 1958. Yes, 1958. Not a single person had signed out the collection of Pekelis’ essays in the forty nine years from 1958 until it was loaned to us late in 2007. (To repeat, sic semper liberales?) Forty-nine years is “lain neglected” with a vengeance. Had anyone even read it in the forty-nine years, without signing it out?)

The collection of Pekelis’ work had an Introduction by Konvitz, a Foreword by Max Ascoli, a leading intellectual of the day who founded and edited a highly regarded magazine of the time called The Reporter, and a Postscript by a well known professor at The New School, Alvin Johnson. From these pieces I learned something of Pekelis and his life, a life that ended at age 44 at Shannon.

Those who heard Pekelis read papers “before the General Seminar of the Graduate Faculty of the New School for Social Research (the University in Exile),” it was said, “will never forget his brilliant performances.” And his friends, “with Max Ascoli in the forefront,” wanted “this volume of writing published as a memorial to his great genius.” The life history of this brilliant person it was made clear, was deeply unusual.

Pekelis, to my own surprise, was not American by birth. Like my parents, he had been born in Russia before 1910, in his case in Odessa in 1902. “The rise of Bolshevism and the wrecking of the Russian universities drove him out of Russia in 1920, to study in” Leipzig, Germany and then in Vienna. He was “deprived of his Russian citizenship in 1922,” becoming “a man without a country, a situation very unfavorable to advancement in the German university world.” So he went to Italy, became a citizen and lawyer there, and a professor of law. Then “Fascism drove him from his chair at the Royal University of Rome.” He practiced law in Paris in 1939 and 1940, and in September, 1941 he came to the United States to teach at the New School (which, again if memory serves, was begun as a haven for brilliant scholar refugees from fascist Europe). While he was teaching at the New School, he attended Columbia Law School, and became the first foreign-born editor [in chief] of the Columbia Law Review.” He did so brilliantly as editor, it is said, that a new office of “graduate editor” was created for him . . . for the year 1943-1944.” (Whether the heavy loss of law school students to the armed services during the war had anything to do with this is something I do not know.)

Pekelis, like my own Russian-born parents, was a Labor Zionist; it was the Labor Zionists from Russia, and Poland too I think, who created Israel. He had, indeed, gone to Europe on the fatal trip as an American Labor Zionist delegate to a World Zionist Conference in Basle, Switzerland. He was killed while returning.

So Pekelis was a man of five different countries, cultures and languages (treating Germany and Austria as one, a kind of Anschluss as it were), at least five languages, and, one gathers, enormous professional success, especially in Italy and the U.S. It was plainly a remarkable life that was cut short at age 44.

What, then, did Pekelis say in The Case for a Jurisprudence of Welfare. Let me once again avoid all the toing and froing, all the arguments pro and con, in order to immediately get down to essence.

He said, like the legal realists of the 1920s, and like Miller fourteen years later, that judges make law, not merely find it as a “brooding omnipresence in the sky” (a phrase I think was coined by Holmes). In making law, a judge should ask “which course of my action – which rule of law – is going to serve best the general welfare of the society I am sworn to serve,” and should try to answer this question not just with legal shibboleths, but with the help of “all available data” afforded by social sciences. Judges should at minimum learn enough about social science “to exercise a common-sense control” over the putative experts with their “charts and . . . essays,” in order “to narrow the appalling chasm between those who . . . study our community and those who, in legislative communities and courts, shape its life.”

That was the essence of what Pekelis was talking about, though there are dozens of pages in his article that deal with objections and with countervailing supporting reasons.

So . . . . what is to be said today about Pekelis’ points and, for that matter, Miller’s? Well, there are numerous things that can be said, but I will cover only a very few.

To begin with the least important -- to begin with the purely personal -- the articles by Miller and Pekelis had an impact on me. They showed that there were scholars, even at least one great mind, that saw law the same way I saw it then despite a complete dearth of such learning in my then-just-ended law school experience, and the way I still see it to this day.

Do judges try to act in ways that will maximize the general welfare? Sometimes yes, sometimes no -- sometimes they merely act according to their own, most often conservative to reactionary, prejudices, especially now with the reactionary, screw-the-small-guy five in charge of the Supreme Court.

Do the courts use the best that social science has to offer in reaching decisions? Sometimes yes, sometimes no. They are aware, of course, because we as a society are far more aware than when Pekelis and Miller wrote, that both social science and even supposed hard science can come and go in fads, that there often are opposing views in these matters, and that reliance on them can be reliance on the merely temporary or the ultimately disproven.

Overall, I am not at all sure we are better off on these scores than when Pekelis and Miller wrote, although I also think that one of the reasons we may not be better off is because we now, as through most of our history, have reactionary courts that are determined to impose right wing values on society -- that is what made George W. Bush president, you know.

I’m going to discuss only one concrete recent example that bears on what I am talking about here. It perhaps does not have an exact one to one relationship (although maybe it does), but is close enough, and aggravating enough, to warrant mention.

Recently, in an opinion by Justice Scalia, the screw-the-small-guy five, this time joined, shockingly, by Souter, Breyer and in part by Stevens, ruled, over a powerful dissent by Ginsburg -- so that in toto it was the screw-the-small-guy five plus two and one-half against one and one-half -- that a man named Riegel could not bring suit under state law against a manufacturer, Medtronic, whose catheter ruptured in Riegel’s heart during open heart surgery. Riegel alleged that the catheter was defective (as well as that his doctor had screwed up in various ways). To make a long legal story short, the Supreme Court majority ruled that Riegel could bring no case under state tort law, because Congress had given the Food and Drug Administration the power to regulate the safety of medical “devices.” New York law was said to therefore be “preempted” by Congress’ law. The FDA, Scalia said, uses a cost-benefit analysis under which it considers if more lives “will be saved by a device which, along with its greater effectiveness, brings a greater risk of harm.” But the jury in a state law case, said Scalia, will not make such an analysis. Rather, it “sees only the cost of a more dangerous design.”

Let me translate Scalia’s statements into unvarnished English: state law against defective medical devices cannot be invoked, because a jury will find the company guilty for defective design or manufacture, whereas the geniuses at FDA will allow the device to be used in a defective state, instead of demanding that the defect be cured, because the defective device will help those whom it does not harm or kill.

And, by the way, Scalia, one of the chiefs of the screw-the-small-guy five, pays no attention to the fact that the company’s lawyers could argue to the jury that the device was designed and manufactured as well as is technologically possible, or possibly comes with warnings the patient had to be told of, etc. Nope. Scalia ignores all this and just makes some assumptions about what juries might do, so that he can arrive at the pro big business conclusion he desires.

Nor do Scalia or his pals in the majority give any consideration to a salient fact that comes up time and time again in the news and events of this country. To wit, the FDA makes lots of mistakes. It does lots of bad things. Many think it is in the hip pocket of the big drug and device companies, even the more so under the Republicans. Yet the screw-the-small-guy five-plus-two-and-one-half want to take away the protection given by state law against such federal incompetence -- against incompetence, if not venality, of the type that pervades Washington.

In her powerful dissent, Ginsburg said Congress gave the FDA the power to regulate medical devices because the failure of “A series of high-profile medical devices intended for human use . . . . Conspicuous among these failures was the Dalkon Shield” of horrendous history. But Congress never intended, Ginsburg said, to prevent (to preempt, in legalese) state common law claims by injured parties, a point for which she cited various elements of the legislative history and even cited a supporting statement by the former chief counsel of the FDA itself. Scalia, on the other hand, ignored legislative history because he leads a movement to completely abandon its use. So to hell with what Congress wanted. (Stevens took the pretty odd position in a concurrence that while Ginsburg is right about the history and legislative purpose of the federal law -- which means he should have voted with Ginsburg regardless of the unguarded language used in the statute -- he would nonetheless vote with the majority because the wording was broad.)

So what we have here is a Supreme Court decision that once again screws over the small man; does so without any basis in Congressional history or purpose, but, rather, contrary to that history and purpose; and screws him over on the basis of unsupported assumptions of what juries might do and with no regard for the recognized fact that the federal agency that is supposed to protect the small guy is incompetent and, apparently, is in the hip pocket of the big drug and device makers. This is not the concern for the general welfare, the concern for a jurisprudence of welfare, or the concern for what investigations or social science show to be the facts, that was articulated so many years ago by Pekelis and Miller.

I close with a last point that I am unable to resist. Thirty-six years ago, in 1972, the DePaul Law Review printed a symposium on the shifting balance of powers between the federal government and the states. The federal/state balance is a subject that is ever with us, and is with us still, of course. I was asked to and did write the Introduction to that Symposium, and think the antepenultimate and penultimate paragraphs of the Introduction are pertinent to a case like Medtronics:

The abuses of modern technology and the modern economy are usually perpetrated by interstate organizations, and curtailing these abuses will consequently have interstate effects of one kind or another. Thus, the easy answer for courts to give on the preemption problem is often that the power of cure resides solely in the national government. This is particularly easy when the national government has already addressed itself to the problem in some way. But, knowing what we do know of the inadequacies in Washington, the easy answer may not always be the safe one from the standpoint of health and welfare.

The real challenge is for the courts to work out a set of coherent legal doctrines which have the effect of insuring that the citizen obtains adequate protection against technological and economic abuse. Such doctrines would have to be flexible enough to permit protection to be given by the political branches of the federal government when they are doing a better job than the states, and to be given by the states when they are doing a better job than the political branches of the federal government. At the same time, the doctrines would have to be sufficiently principled so that decisions would not be rendered on a totally ad hoc basis. Lastly, the complete set of doctrines would have to provide for judicial protection in cases where neither the states nor the political branches of the federal government are protecting the citizen: in such cases the judicial protection would have to be based on some sort of evolving common law.

It is obvious, is it not, that what is suggested in these two paragraphs is emphatically not what the Supreme Court did in Medtronics, where it did not protect the citizen but instead found a way to screw him over in favor of big business and big, centralized government as represented by an ineffective federal agency? Nor does the Medtronics opinion do what Pekelis and Miller urged by maximizing human welfare instead of screwing people over. And such screw-the-small-guy, Medtronics type jurisprudence from the Supreme Court is one of the reasons -- only one, but nonetheless one -- why lots of people are and should be reacting very adversely to the current Supreme Court.*

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* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

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Tuesday, March 04, 2008

Sun 3/2/2008 10:47 PM
Anonymous has left a new comment on your post "RE: The Needed Mental Attributes Of A President; T...":

I've never thought that either Clinton was anywhere near as smart as many writers have proclaimed them to be.I've never understood why so many people think that Bill Clinton is a brilliant speaker. To be effective one must achieve clarity of expression - by knowing how to present ideas forcefully, without confusion or unnecessary words, by choosing language suited to one's purpose. When have you ever heard Bill Clinton do that?He hectors, obfuscates, is vague, and tends toward the prejudicial rather than what is logical.Question for you, Dean Velvel:What's your take on G.W. Bush (and his father, for that matter) having received a degree from Yale and one from Harvard? I'd think that any graduate of either university must be appalled that such an apparently dim person could have earned a degree from either institution.