Righting wrongs the American way

One of the ways our legal system adjusts is that old process we remember from our first elementary school courses (and perhaps think of as trite and archaic): the system of checks and balances.  I grew up at a time when the federal courts were a substantial check on state legislatures, state courts, and local police forces.  Since my childhood, though, the political system has grown increasingly conservative, and by now the federal courts too have become conservative.  Last year, as the New York Times explained yesterday, the Supreme Court “made it much harder for people to challenge discrimination in employment, education, housing and other fields. Lilly M. Ledbetter lost her sex-based pay discrimination case at the Supreme Court in 2007, a decision that other courts have cited in rejecting lawsuits. Congress may overturn the ruling.”

The Court held that employment discrimination claims must be be filed within 180 days of the  ”the alleged unlawful employment practice” – the initial decision to pay Ledbetter less than men performing similar work.  Previously, courts had held that each paycheck after the initial discriminatory act (each of which would have been for less money than if the discrimination had not been committed), constituted a new act of “continuing discrimination.”  Thus, as long as the employee filed her claim within 180 days of a paycheck reflecting the impact of the discriminatory employment decision, her claim could be heard.

The decision was roundly criticized at the time and quite plainly cut off an enormous number of discrimination claims (whether the unlawful action had been discovered within the 180 days or not).  Now it seems Congress is ready to right this judicial wrong.  The bil it is is considering “states that a violation occurs each time a person receives a paycheck resulting from ‘a discriminatory compensation decision.’” “President Bush threatened to veto the bill, but Mr. Obama is eager to sign it.”

The Power to Pardon and Turkeys

The President and governors have the power to pardon and grant other relief and/or immunities from criminal prosecution.  The web site Pardon Power reports the news on the exercise of these powers.  As it explains, a “pardon” is

The removal of all disability or punishment. Pardons may be granted before or after conviction. Today, they are usually granted in order to restore civil rights (the right to vote, hold public office, participate in a jury, own a firearm, etc.). Pardons can have conditions attached. There has been a steady decline in the granting of pardons since 1900 whether one looks at the raw number of pardons, the percentage of applications that result in pardons or the percentage of presidential clemency decisions which result in pardons. There has, however, been a more accelerated decline since the late 1960s.

The site also defines on its home page the terms amnesty, clemency, commutation, expungement, remission, reprieve, respite, and sealing, all powers that executives can exercise unilaterally to relieve the burdens of criminal prosecution, whether that prosecution is a potential one, an ongoing one, or a completed one.

Each year the President and some governors engage in a “pardon” of a turkey, which I suppose is intended to deflect our minds from the annual mass sacrifice of turkeys for our national day of gratitude.  This year, as seattlepi.com reports, Sarah Palin’s pardon turned into an seeming parody of itself:

Moments after pardoning a Thanksgiving turkey, she gives a news conference at a turkey farm – unaware that apparently unpardoned birds are being executed behind her. MSNBC’s captions include, “Turkeys Die as Governor Palin Takes Questions from the Media,” “Gov. Sarah Palin Keeps Talking While Turkeys Get Slaughtered Behind Her,” and “Gov. Palin Apparently Oblivious to Turkey Carnage over Her Shoulder.”

As the Gothamist notes, this is “probably why the White House Turkey Pardon is done at 1600 Pennsylvania Avenue and not at a slaughterhouse.” Then again, another law professor writes: “Deal with it, you candy-asses. If you eat meat, something like that is going on in the background for you too.”  A Palin supporter writes, “After she’s sworn in in 2013, I hope President Palin arranges for a ritual turkey slaughter to be going on behind her at every press conference,”  Another: “Farmers kill animals. Then they sell them. Grocery stores package them. Meat-eaters buy them and eat them. This is no big deal – except if you reside in the Ivory Tower or the David Brooks/Kathleen Parker/Arianna Huffington/Daily Kos intellectual complex.”  Still another likes the suggestion that Palin “did it on purpose. Tough call: I’m sure she wasn’t fazed by the sight, but it certainly isn’t above her to undermine the stupidity of the ‘turkey pardon’ tradition. If she was having a little passive-aggressive fun, she’s certainly earned it.

From a different point of view, as Joe Windish observes, Michael Pollan wrote in The Omnivore’s Dilemma:

Sometimes I think that all it would take to clarify our feelings about eating meat, and in the process begin to redeem animal agriculture, would be to simply pass a law requiring all the sheet-metal walls of all the CAFOs [concentrated animal feeding operation], and even the concrete walls of the slaughterhouses, to be replaced with glass. If there’s any new right we need to establish, maybe this is the one: The right, I mean, to look. … The industrialization-and brutalization-of animals in America is a relatively new, evitable, and local phenomenon: No other country raises and slaughters its food animals quite as intensively or as brutally as we do. No other people in history has lived at quite so great a remove from the animals they eat. Were the walls of our meat industry to become transparent, literally or even figuratively, we would not long continue to raise, kill, and eat animals the way we do.

The turkey pardoned this year by the President, incidentally, is known as the “National Thanksgiving Turkey.”  This year’s National Thanksgiving Turkey, according to the White House, was  flown after its pardon “first class to Disneyland Resort in Southern California, where he [was] the grand marshal of ‘Disney’s Thanksgiving Day Parade.’ After the parade, guests will be able to visit the turkey in Frontierland section.”

The confusion (and, often, anxiety) that inevitably arises when confronting new and difficult problems

To allay anxiety caused by their inevitable confusion, I regularly explain to my students that any problem worthy of their professional expertise will require a period during which they do not have a clue how to solve the problem, when they feel completely confused.  I have to confess utter confusion regarding how this election will turn out.  On the one hand, a Democrat victory seems inevitable.  There is no one I know well who isn’t hurting these days.  The economy is in a shambles, prices on necessities are skyrocketing, we haven’t yet captured or killed Osama Bin Laden, Afghanistan is in chaos, what “victory” realistically constitutes in Iraq remains a mystery (do we really expect to walk out of their with a strong and democratic ally?) . . . I could go on.

At the same time, I would’ve been astounded during most of my life to think the U.S. would elect a black as President unless he happened to be a conservative Republican.  And my belief that a majority of U.S. voters would choose a Democrat this year runs up against that unshakeable feeling.  There are certainly people who will say their vote is based on race (and anyone who says otherwise really is out of touch with certain segments of the U.S.), but they are in a minority.  Others claim astonishment that people think their intentions are based on race even when all indications are otherwise.  Representative Lynn Westmoreland claims he is astonished that calling Barack and Michelle Obama “uppity” would be taken as a racist comment.

Others speak in a code maybe they themselves don’t realize is racist.  As reported in last week’s Cleveland Jewish News, a Cleveland mental health counselor, for example, is “’concerned not so much about Obama the man, but the influences he might be subjected to from Muslims. I know he was brought up as a Christian, but both his father and stepfather were Muslim, and there has to be some influence there,’ she maintains.  Although she also has serious reservations about McCain, she is ‘haunted’ by her concerns about Obama.’”

And then there are the people who’s financial motivations are difficult to separate from other motivations.  My son’s doctor yesterday asked me what I thought of Wednesday night’s Republican convention.  I said I thought it was “ugly.” He told me he thought it was excellent and that he doesn’t like “the people around Obama.”  Then he turned to my son and said, “You’re father’s a liberal.  He wants to make a lot of money and give it all away.”

I bit my tongue and stopped myself from saying, “Your doctor’s a conservative.  He wants to make a lot of money and keep it all for himself.”  But what do I expect from a loyalist to that a party that fraudulently claims Obama will will impose “painful tax increases on working American families” when in fact, as reported accurately by FactCheck.org, “Obama proposes to cut taxes for most individuals (81.3 percent of all households would get a tax cut), while raising them only for a relative few at the top”?

It’s difficult to separate people’s economic motivations from their more visceral motivations.  I can almost understand the people who make a lot of money and do not want to shoulder a fair burden of paying for the infrastructure, services, and schools necessary to a society that allows them and others to do so, but I cannot understand people like Mitt Romney (“It’s time for the party of big ideas, not the party of Big Brother!“) and Rudy Giuliani, the former mayor of New York City (“I’m sorry that Barack Obama feels that her hometown isn’t cosmopolitan enough. I’m sorry, Barack, that it’s not flashy enough.”). Check that — I can understand Rudy.  I once worked with Rudy.  I remember sitting across a desk from him and his eyes glazing over as I explained the results of legal research I had done for him.  His chief assistant was in the room, furiously taking notes.  I knew the assistant was the person I was reporting to while we were all pretending I was reporting to Rudy.  Rudy is a mediocre person wrapped in a remarkable amount of ambition.  I suspect Romney must simply be the same.  

The Republicans are, undeniably The Party in Power, Running as if it Weren’t.

Where will all of this leave us in November?  I don’t have a clue.  I need to follow the advice that I give to my students and not let this utter confusion cause me too much anxiety.

With whom would you prefer a lager?

An often effective method of persuasion is to change the topic from what the argument is about to who the arguer is. It’s known as a fallacy because, according to the Nizkor Project, “the character, circumstances, or actions of a person do not (in most cases) have a bearing on the truth or falsity of the claim being made (or the quality of the argument being made)”: the topic in the presidential race isn’t what the President will do, it’s what kind of person he is. As Crooks & Liars pointed out last Spring

The data is clear. If the election is about the economy, health care and Iraq, John McCain cannot become the 44th president. Only if the GOP succeeds once again in transforming the race into a media medley about lapel pins, angry ministers and Muslim-sounding middle names can the Republicans hope to maintain their hold on the White House.

And so, [w]hile their man [or woman], be it George W. Bush or John McCain [or Sarah Palin], is the ‘authentic’ guy [or girl] you’d “’ike to have a beer with,’ the GOP drives the media conventional wisdom that paints the likes of Al Gore, John Kerry and now Barack Obama as effete, out-of-touch elitists whose positions change with the wind.”

So it shouldn’t be a surprise that today the Washington Post quoted Rick Davis, campaign manager for John McCain’s presidential bid, claiming that “[t]his election is not about issues,” said Davis. “This election is about a composite view of what people take away from these candidates.”

[This leaves aside to me a truly astonishing question: what is it that makes Barack Obama an elitist but not John McCain?]

The creative mind is the one that can master these methods, take them apart when they’re being used against him, and come back with an even more effective strategy.

But what would I know? I blog about law and creativity, and I’m an academic who used to work with a major law firm and at that time lived in Manhattan. I must be an out-of-touch elitist.

We all, always, are figuring out the stories the world is telling us.

Lawyers understand better than most that putting together a story in one’s mind is the most common everyday act we all engage in. People speak of “proof” and “facts” as if they’re certainties, but lawyers know that “proof” is merely evidence that can only be understood in light of other evidence and that “facts” are not hard and fast things inferred from the evidence. As I tell my students, “We never have God’s videotape.”

But we need to understand the evidence we confront as hard and fast enough to support the decisions we always have to make, whether we’re jurors or just ordinary people making the decisions ordinary people make all the time. And we’re not bad at it; we come to the best story we can given the facts and move forward. The process may almost be like natural selection: our decisions about how to interpret the evidence we have are tested by the consequences those decisions entail, and so our interpretations (we hope) get better as we see our decisions succeed and fail.

In short, the world is a story just like a news story, a movie, or a novel is. And those of us who engage in storytelling know more than a few things about how to put together the evidence to sway our audience in the way we want our audience to be swayed. I wrote the week before last about one pattern humans find compelling.

There are many, many more effective methods of telling stories. Tell the story from the point of view of the person with whom you want your audience to identify. Move what you emphasize to the front of your story, to the front of your paragraphs, and to the front of your sentences. Spend more time on what you want to emphasize. Stay credible. Take what you want to de-emphasize and bury it in the middle of your story, in the middle of a paragraph, and in the middle of a sentence. Better yet, surround that “bad” evidence by good evidence at the beginning and ends of those paragraphs and sentences. Do mention the “bad” facts (if you don’t, some adversary will, which will considerably damage your credibility), but mention them as briefly as possible.

I could go on, but that’s enough for today.

One last thing: how do you decide about the evidence regarding Sarah Palin?

Is she a true agent of change? She’s taken on the establishment in traditionally corrupt Alaska to become one of our ruling party’s rising stars and walks the walk when the real world we all struggle with confronts her. She ran for governor and won against the former Senator who had appointed his own daughter to succeed him in the Senate and is more popular with her constituents than any other governor is among his or hers. When she is faced by the kind of unanticipated smack in the face Reality often doles out — as she has been by her daughter’s pregnancy, a private matter that anyone could face — she shows that she stands by her principles. She opposed the “Bridge to Nowhere,” the project which is synonymous with business as usual in Washington, and she is a political enemy of the corrupt Senator from her own party, Ted Stevens. In short, John McCain showed he really is a true maverick in choosing her.

Or is she this year’s Thomas Eagleton and Geraldine Ferraro rolled into one? She’s a charismatic Christian creationist who would outlaw abortion even in cases of rape and incest. She was a member of a political party that stands for the secession of Alaska, the abolition of all property taxes, and the privatization and exploitation to the hilt of all public lands within the new country. She was elected governor of a state so unpopulated she only needed 115,000 votes to win, and so, while she may be popular there, her popularity hardly shows she is representative of “real” Americans. How could it? She has been governor of that state for less than two years. She believes in abstinence-only education, yet the ineffectiveness of that policy in fighting teen pregnancies is highlighted by her own 17 year old daughter’s pregnancy. She supported the “bridge to nowhere” before she opposed it. She didn’t “take on” the corrupt Ted Stevens, as Lindsey Graham claimed, but, rather, led a major fundraising effort for him. She’s even under investigation for pressuring Alaska’s commissioner of public works to fire the state trooper who was engaged in an acrimonious custody battle with her sister. In short, she is Exhibit A for the defects in John McCain’s decision-making and judgment.

Addendum: from Hilzoy at Obsidian Wings: “Sarah Palin was not registered as a member of the Alaska Independence Party, though TPM Muckraker found that her husband was.“