The enduring impotence of the Democratic Party

Politics, , ,

As seen through the microcosm of Senator Joe Manchin of West Virginia:

Take Senator Joe “Dead Aim” Manchin of West Virginia. After the shooting in Newtown, the conservative Democrat, who has an “A” grade from the NRA and literally shot a bill with a rifle in a campaign ad, said he would support the assault weapons ban.

A month later, not so much. The New York Times checks in with Manchin today, as he sat down with his constituents in West Virginia, some of whom picketed his office after he announced he would consider such a bill. “A guy can walk through this door right here with your Beretta five-shot automatic, and cut the barrel off at 16 inches, and put five double-ought buckshots in there and kill everybody in here in a matter of seconds,” one voter explained. “And you don’t have to aim it.”

Another offered, “I can take my A.R., load it, put one in the chamber and throw it up on this table, and the only way it’s going to hurt anybody is if I miss and hit someone in the head. The gun doesn’t hurt anybody. It’s the person pulling the trigger.”

That’s pretty much all Manchin needed to hear: “I’m not there,” he told theTimes about the ban. “I’m definitely more inclined to be very supportive of background checks.” And he’s not even up for reelection in 2014, like Democrats in Montana, Alaska, and Colorado, all of whom initially expressed openness to the ban and have since ran it back.

The Democratic Party: never missing an opportunity to miss an opportunity.

The usefulness of the wacky fringe

Politics, , ,
[youtube http://www.youtube.com/watch?v=AtyKofFih8Y]

As Barack Obama enters his second term, speculation is predictably high about every aspect of what’s coming up: new policy proposals, the specter of continued gridlock on Capitol Hill, a heavy docket of significant rulings pending at the Supreme Court, and so on.

Central to this debate is the question of whether Obama will be able to leverage his electoral triumph into real momentum for his policy agenda. Will the Republicans continue to draw from their playbook of the last four years, or will they be inclined to compromise more in the wake of their poor showing at the polls in November?

Despite the partial fragmentation of the national GOP between moderates — in the most relative, unanchored sense of the term — such as John Boehner and party hardliners like Michele Bachmann, early indications are that Republicans are unlikely to shift much until at least the 2014 midterms, depending on how they do.

Which brings me to the above video, of radio host Alex Jones displaying an alarming mental instability on a nationally televised show inexplicably hosted by Piers Morgan. Say what you want about Morgan, but at least he had the good sense to shut up, for the most part, during this “interview” and allow the world to see just how unhinged the gun nut really was.

But it also made me think about the nature of political conversation in the U.S. these days. For years now, the right has not only allowed, but often actively encouraged, radical and unreasonable rhetoric, for the simple reason that it helps rile up the base and inspire them to increase public pressure on Democrats, vote for Republicans, donate money, and so on. That’s an understandable short-term goal (it helps in the next election), but it’s produced impressive long-term benefits as well: each time a foaming-at-the-mouth conservative espouses an armed takeover of Washington or impeachment of the president for allegedly not being a naturally-born American or whatever else, the right-wing boundary of acceptable conversation shifts further right.

The problem is, there’s no counteroffensive from the left, which generally polices its commentary to an astounding degree (especially surprising given the increasingly partisan nature of American politics). Insane leftists don’t fare well in the United States. But crazies are the mainstream across the aisle.

There are several reasons for this. For one, there’s really no American far left to speak of these days. Even in Europe, which has moved steadily right in recent years to the jaunty tune of “austerity measures” and “shutting borders to Islamic fundamentalists,” lefties retain much of their glamour. (See Jean-Luc Mélenchon in France, for example.) But in the U.S., we’re confined largely to the likes of Michael Moore, Noam Chomsky, and a smattering of others, all of whom have their devoted followings but none of whom enjoy the warm embrace of large swaths of the population at large or have any real political power.

Another reason for the prominence of right-wing insanity is, ironically enough, liberal media establishments. (No, I do not mean that the media establishment at large is liberal; I’m referring specifically to the media institutions that are liberal, such as MSNBC and a host of online blogs and news sites such as the Huffington Post.) The first one to trumpet something stupid said by a lowly or irrelevant Republican is usually a member of a Democratic-leaning media organization. This makes sense when the said troublemaker is reasonably significant, but in recent years the left has played an outsized role in promoting people such as Orly Taitz, ineffective and mostly impotent members of Congress like Allen West and Michele Bachmann, and even a thoroughly discredited post-2008 Sarah Palin — the last of whose every sideways glance the press breathlessly reports as if it signaled the Second Coming, even as she and her family have drifted into tawdry, broadsheet-worthy behavior (see Palin, Bristol).

Without a huge assist from left-wing media promoters, all such tragic humans would have faded slowly from the spotlight (to varying degrees, of course: Sarah Palin will always be more interesting than Orly Taitz). Instead, they’re kept front and center in our public consciousness by “media watchdogs” like Mediaite — which, by the way, uploaded the above video. It’s time to start ignoring people whose most recent credentials include, for example, stints on reality TV (a growing subset of Americans, to be sure, but not one I’m ever interested in hearing about).

But whatever the causes, one consequence consistently remains: right-wing brashness dominates the news cycle while liberals mostly cower in fear. And this state of affairs has started to make me wonder whether the American progressive sector would do well to unleash its own attack dogs a little more often.

Take the Newtown massacre, for example, and try to imagine the GOP and Democrats on opposite sides of the gun control debate from where they are now: in other word, Democrats against gun control, and Republicans in favor of it. Would the right have waited several days, as did Obama, and then given a speech in favor of some very vague “changes,” then waited even longer before finally announcing the conclusions of a study group led by the vice president that would result in a myriad of mostly ineffective and insignificant executive orders and a thoroughly unambitious legislative agenda?

Of course not. We know this because guys like Rep. Louie Gohmert were appearing on TV shows within a day or two of the shooting and saying they only wished there’d been more guns at the school. Then the NRA held its notorious press conference and made things even worse. I’m using the words “notorious” and “worse,” however, in a very relative sense, since in reality the event was quite successful from a far right perspective: it once again slammed the door in the face of timid liberal attempts to ever so slightly nudge public policy.

So what I’m saying is, the next time something like Newtown happens — and there will be a next time, as we all know by now — I don’t want to hear Democrats and liberals clamoring all over each other to be the first to demand an assault weapons ban. That is a quintessential Democratic tactic, and one that Barack Obama has practically made his trademark: beginning the negotiation by asking for exactly what he hopes to get by the end. It doesn’t take a genius to realize that this is a horrendous strategy in any situation, but it’s even worse when the counterpart is an increasingly unpredictable and radical political party.

Instead, we should hear people calling for a repeal of the Second Amendment. I’d love to have that conversation play out on the national stage. Of course, there are several issues with this approach. For one, the media has a funny way of discounting staunch leftist rhetoric in a way it doesn’t on the right. But again, I think this has become a chicken-or-the-egg scenario: the media doesn’t necessarily have any ingrown bias against leftism, but they’ve developed artificially skewed boundaries of acceptable discourse anyway because that’s what they’ve been exposed to for so long. Destroying that stasis won’t happen overnight, but it has to start somewhere.

Perhaps the larger problem is that almost no Americans would support such a proposition (repeal). But why does that matter? A wide array of social movements — from women’s to civil to gay rights and more — took their first steps in a landscape of profound public hostility to their objectives. And anyway, my point isn’t actually to repeal the Second Amendment. The point is to make a big enough deal about it so that the proposals from the opposite side — say, arming teachers in every school — get taken right off the proverbial table.

Indeed, such was the promise of Occupy Wall Street. Unfortunately, the movement failed to crystallize into something truly permanent. But despite Occupy’s short, limited role, the entire national conversation shifted rather dramatically for a time. Today, it is commonplace to hear politicians and public figures speak of the 99%, the 1%, and so on, but these were concepts only just recently introduced into the broader lexicon. And at least as importantly, it served as a heavy counterweight to the classist “takers” rhetoric coming from the right. Would Mitt Romney’s infamous “47%” comment have exploded nearly as loudly as it did if Occupy Wall Street hadn’t raised the issue of middle-class exploitation just months before?

I think not. Although the movement ultimately fizzled out, the ragtag group consisting largely of students, social misfits, hipsters, and the unemployed briefly jolted the boundaries of discourse in the opposite direction from their long-term trajectory. The question is whether that shift represented an insignificant and temporary diversion from the mean, or a useful lesson on how to conduct political warfare in the future. Yes, the Democrats have managed to win the popular vote in five of the past six presidential elections. But just imagine what the left could accomplish if it actually started fighting.

Apparently “baby killing” is not such an effective scare tactic anymore

Law, Politics, , , , ,

Today marks the 40th anniversary of Roe v. Wade, and a new poll reveals that the ruling is more popular now than it’s ever been before:

Seven in 10 adults say the Supreme Court should not overturn its landmark decision establishing abortion rights, according to a new Wall Street Journal/NBC poll.

That is the highest level of support for Roe v. Wade in the poll’s 24 years of tracking the question. Only about one in four said the court should overturn its verdict.

Michael Tomasky zooms out:

Same-sex marriage approval. Marijuana legalized. Now this. It continues to amaze me how the country has flipped culturally. I think this is probably Obama’s biggest impact, more than health care or anything else. He’s changed the political culture of the country. In some senses by doing particular things–repealing don’t ask, don’t tell. But in other senses just by being Barack Obama.

In accepting him as their president (which 70 percent of Americans happily do, even when they may disagree with this or that policy), Americans appear also to have accept in some internal way that it’s a different time and a different country now. It seems natural that that psychic change would first manifest itself in certain shifting cultural attitudes, as these are low-hanging fruit compared to the big policy changes that face ferocious opposition in Washington.

It may also be that it’s not really Obama who made these changes, that they were well in formation when he just happened to come along and embody them. I think here of the Beatles as an analogy. They certainly changed the culture and the world and led a revolution, but many societal factors were lined up in harmony just waiting for someone to come along and pop the cork: the rise of the teenage demographic, the end of conscription (in Britain, which gave young males more freedom), and so on. Everything came together and boom it all went. Same kind of thing here.

“A personable middle-aged man.”

Humor, Politics, , , ,

That’s the sensible description of Barack Obama, as written by China’s state-run Xinhua:

Barack Obama, a personable middle-aged man, inaugurated as the first African-American president of the United States four years ago with an ambitious oath — “Yes, we can.”

However, when Obama swore in for a second term as the country’s top leader on Monday, a man with eyebags, black spots and white hair stepped on the stage.

The article ends on a gloomy note:

Apparently, sad moments overwhelmed happy ones in Obama’s first term, as the number of things he can’t do is far beyond those he can. Even his own doctor admitted that President Obama now looks eight years older than four years ago.

Whether the next four years could be easier for him remains a mystery, but it is for sure that Obama, buried in unstopping affairs at home and abroad, could never be any younger.

In which I (utterly fail to) conquer my flying anxiety

Humor, Miscellaneous, , , ,

My latest post for Full Stop is now online. An excerpt here:

It is probably most accurate to characterize my flying preparations as a mutual fund of sorts, constituted of various types of investments all designed to hedge against utter desolation (a fiery nosedive into a mountainside) and achieve modest returns (a safe landing). Recently, for example, I put off watching The Wire mid-flight in favor of lighter fare to calm my frayed nerves, and I swear Sebastian Edwards’ book on Latin American populists spawned vicious air pockets every time I opened its pages.

Small decisions, too, attain cosmic significance when followed seconds later by a slight shudder of the cabin. Was the weather better when I’d paused Bridesmaids, or is the only way to ensure smooth sailing to watch the entire film at 4x speed? These are not questions to be taken lightly, for upon their successful resolution rests the fate of hundreds of passengers, as well as the ability to understand a damn thing Kristen Wiig is saying at that rate. And no matter which airline I fly, I continue to cringe at the deliberately ominous abstraction of the announcement, “We’ll be on the ground shortly.”

Back from Internet hell

Miscellaneous, , , ,
Courtesy of Colossal (http://www.thisiscolossal.com/2013/01/brooding-cityscapes-painted-with-oil-by-jeremy-mann).
Courtesy of Jeremy Mann and Colossal (http://www.thisiscolossal.com/2013/01/brooding-cityscapes-painted-with-oil-by-jeremy-mann).

For an Internet addict like myself, the last couple weeks have been difficult. Access to foreign sites in mainland China is frustrating at best and infuriating at worst. Specifically, aside from the usual litany of blocked social media sites (Facebook, Twitter, and YouTube, for example), even the New York Times is blocked, and virtually every other foreign site (including Google) takes five times as long to load as it does in the States. Baidu, meanwhile, appears instantly. Ergh.

I just got back to New York yesterday. But during my winter vacation, I’ve been doing some thinking about how to make The First Casualty a better and funner (yes, I have decided that is a word) blog and Internet destination in 2013. Within the next few weeks and months I’m planning to roll out some new — and, hopefully, interesting — ideas for the blog: new contributors, additional features, and so on. Of course, I’ll be continuing the current features and contributors (depending on their availability) as well.

Additionally, I hope to introduce more original content this year. Much of what I posted last year were links to, and excerpts of, other pieces I found illuminating or provocative. I’ll continue to do so this year, but with an added emphasis on producing more original writing — including longform essays and posts — to provide what is hopefully a useful and unique variant to the cacophony of voices on the Web.

Anyway, I’m open to suggestions. Please comment and question liberally. And thank you for continuing to read.

Forget Clarence Thomas: In Louisiana, You Can Be Guilty Before Proven Guilty

Law, , , , , , , , ,
Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)
Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)

As the dust settles from Monday’s Boyer v. Louisiana oral argument before the Supreme Court, the major news takeaway is undoubtedly Justice Clarence Thomas’ breaking of a nearly seven-year silence from the bench to crack what may or may not have been a joke about the competence of either Harvard or Yale-trained lawyers (the full transcript of the argument is here).  Much hay has been made in the press over what Thomas’ joke could have meant–see the near-breathless coverage analyzing the Justice’s mindset here, here and here–but the actual arguments behind Boyer, which explores the limits of the state’s obligation to provide a speedy trial for an indigent death penalty defendant, are interesting enough to merit a second glance as well.

Jonathan Boyer and the state of Louisiana disagree over almost every aspect of what happened on the night of February 3, 2002, when Bradlee Marsh was shot three times and killed as he sat in his pickup truck. While Louisiana maintains that Boyer was responsible–a conclusion bolstered by Boyer’s subsequent confession and the testimony of Boyer’s brother–Boyer claims that his “confession” was fake and that someone else was behind the killing. Regardless of the perpetrator’s identity, all sides agree that after his arrest and indictment for first-degree murder, Jonathan Boyer waited over five years in prison for his trial to begin after Louisiana appointed but did not have the money to fund the two requisite attorneys assigned to defend his death penalty case. (The federal Constitution does not mandate two defense lawyers in capital cases, but Louisiana state court rules do.)  It was only after the state decided to drop the first-degree murder charge–a move which took the death penalty off the table and made his case less expensive to defend–in favor of lesser charges that adequate funds were freed up and trial began. By this time, several witnesses had died or otherwise become unavailable. Boyer was convicted of second degree murder and armed robbery and sentenced to life imprisonment without parole. He now argues that Louisiana’s failure to fund his lawyers in the years it spent pursuing the death penalty led to a violation of his Sixth Amendment right to a speedy trial–the remedy for which requires a reversal of his murder conviction.

The Supreme Court outlined in 1972’s Barker v. Wingo a four-factor balancing test for determining whether a Sixth Amendment infringement has taken place: (1) the length of delay, (2) the reason for the delay, (3) whether and how the defendant asserted his right to a speedy trial, and (4) the prejudice that the defendant suffered due to the delay. Depending on the facts of the case, each factor is weighed against either the defendant or the state. In 2009’s Vermont v. Brillon, the Court found that a “systemic breakdown” in the public defender system leading to a delay of trial could be counted against the state. The main question in Boyer is whether a five-year failure to provide funding for the indigent’s appointed defense should similarly be held against the state. A “Yes” to that question doesn’t automatically mean that Boyer’s speedy trial rights were violated, but it does help his case in the Barker balancing.

Unsurprisingly, Louisiana argues that the delay in funding should not be held against the state so long as the state did not purposely withhold the money to avoid trial. Though Louisiana’s prosecutorial offices routinely received surpluses (of hundreds of thousands of dollars) to try cases in the same period of time that Boyer awaited trial from prison, the state maintains that the lack of funds for his defense resulted from other factors beyond its control, like Hurricane Katrina cleanup and the available monies being used up in other capital cases. Louisiana insists that it already dealt Boyer a more-than-fair hand by even bothering to appoint two counsel for him, which was enough to safeguard Boyer’s Constitutional rights.

At Monday’s lively oral argument, the Justices split over whether the delay was actually attributable to Boyer or to the state. Justice Scalia agreed with Louisiana that the state had already been very “generous” in naming multiple Ivy League-educated attorneys for Boyer (which is where Justice Thomas stepped in with his now-infamous four-word joke concerning their competence). Rather than putting the onus on Louisiana to fund the two lawyers required under its own state procedure, Scalia postulated that had Boyer truly cared about getting a speedy trial, he would have waived his state right to two attorneys and proceeded with just the one lawyer required by the federal Sixth Amendment. Justice Ginsburg questioned whether Boyer, a man with an eighth-grade education, knew that this option was available to him. Justice Kagan pointed out that even Louisiana seemed unaware that Boyer could move forward with only one attorney, since it had previously explained the delay by saying it could not “ethically or legally bring [Boyer] to trial” because he had been “without properly funded counsel for so long.” Meanwhile, Justice Sotomayor, who has worked as a prosecutor in New York, repeatedly pressed Louisiana to explain how a state’s choice to fund prosecutors’ investigations (or anything else) over capital defendants’ lawyers could not be attributed to the state.

The Justices also sparred over the scope of the question to be decided. In addition to laying out the four-factor balancing test, Barker v. Wingo holds that speedy trial challenges must be considered on a case-by-case basis, which allows for a far more fact-intensive inquiry than the Supreme Court is used to handling. Several members of the Court, led by Justice Breyer, mentioned repeatedly that the Court’s only job is to consider the general question of whether the failure to fund counsel should weigh against the state in a speedy trial challenge. (If so, they are content to send the case back down to the Louisiana courts for the case-specific reconsideration of whether such a violation occurred.)  Justice Scalia, however, believes the Supreme Court should both answer the general question AND perform the case-specific four-factor reanalysis for Boyer. To that end, Scalia spent a significant part of the oral argument focusing not only on the reason for the delay but on whether Boyer and his legal team properly brought up the speedy trial issue in the lower courts, whether he actually suffered prejudice due to the delay, and whether a reversal of his murder conviction would still leave him with a 99-year concurrent sentence for his armed robbery conviction.

If the oral argument is any indication, Justices Alito, Ginsburg, Sotomayor and Kagan agree with Breyer’s general reading of the question presented. These Justices also seem receptive to the idea that the lack of indigent defense funding is attributable to the state. This would constitute the five-Justice majority needed to remand the case to the state court for re-analysis.  It’s possible that Boyer could still lose his battle there–notwithstanding a SCOTUS ruling that the failure to fund should be weighed against Louisiana, Louisiana could still win the overall Barker balancing back in the lower court. But even if this happens, the Supreme Court will have (at the very least) sent a clear message to the states that if they keep shunting indigent defendants to the back of the line, they will be held responsible for such decisions.

The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)
The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)

As for Clarence Thomas’ thoughts on the fundamental questions of the case: who really knows? He hasn’t asked a substantive question at oral argument since 2006, and he certainly didn’t start on Monday. (I’m inclined to agree with Tom Goldstein of SCOTUSblog and Andrew Cohen of The Atlantic when they say the hoopla over the joke was a case of much ado about nothing.) Given the issues at stake, it’s too bad that Justice Thomas’ offhand remark ended up overshadowing the interesting points coming from both sides.*  The depressing truth about death penalty cases is that they take an extraordinary amount of effort and resources to defend–money and time must be spent for thorough investigation and expert witnesses, for both the trial and the sentencing phases–and as Justice Sotomayor pointed out, only a very small group of lawyers in this country are even qualified to argue death penalty cases. A defendant with money may be able to hire such a lawyer and pay for the investigation, but the indigent’s court-appointed counsel cannot be expected to pay such expenses out of pocket. And while it’s not unforeseeable that very cash-strapped states acting in good faith may simply not have enough money some years to try or defend all their capital cases, it is brutally unfair to make the indigent defendant bear the brunt of those funding decisions by waiting out that time in prison.

In other words, Louisiana for over five long years subjected an untried Jonathan Boyer to a philosophy of “guilty before proven guilty,” a situation he was powerless to avoid because he had no means of his own to mount a defense and no authority to change the state’s funding decisions. Regardless of Boyer’s culpability for the murder of Bradlee Marsh, the Supreme Court needs to remember that the Constitution guarantees a speedy trial for those found innocent and those ultimately found guilty, for those who can afford to defend themselves and those who cannot. Louisiana needs to be held accountable for its choice.

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*I do wonder what Justice Thomas himself thinks of all the media attention surrounding his comment, particularly when he opined publicly in April 2012 that his fellow Justices should listen more and refrain from interrupting lawyers so frequently during oral argument.