The Monsters

I am recycling. Below is a blog entry that I first published in 2007. I was a new blogger then and trying to figure out exactly what I wanted my blog to be. It surprises me that it has turned into such a political place. Initially I planned to write about the foibles of life, share the things that made me laugh or cry.

I wrote this poem on 9/11, sometime that night. I had been on the telephone with my sister and she told me that her husband, Bob, had commented on the need to connect that was inspiring Americans across the nation to reach out and embrace one another. He also observed how sad it was that the sense of unity wouldn't last, that far too many of us would soon return to divisive mistrust, to an antipathy towards the suffering of others,  to a willingness to do violence against others, and to a selfish disregard of anyone's needs other than our own. I couldn't stop thinking about what Bob had said and the poem below was the result of my mulling over his astute insight into human nature.

There Be Monsters

The images on the screen kick you in the guts,
...smoke and ash…smoke and ash...

Smoke rises from the oil,
onions, peppers, a little garlic
a woman in her kitchen
stirring, preparing
her eyes on the clock
always on the clock.

On the flickering screen, horror and hate,
smoke and ash...

She grips the spoon,
absorbs herself in tomatoes and basil,
listens for the footsteps, the metal on metal of key and lock.

"Did you hear...have you seen...all those people..."
her voice falls into the silence of expectation.

"A shame," he tells her, "a damn shame."

His words match her horror,
together watching smoke and ash...smoke and ash

But there is too much salt or too little,
too much basil or not enough,
always too much or too little.

She surrenders to the horror of the fist in the face,
wraps herself in smoke and ash
knowing that the monsters are always under the bed.

Sheria Reid

9/11

We Shall Overcome

I recognize that black people don't own oppression but we certainly know a hell of a lot about it first hand. I first understood what it meant to be black in this country the summer when I was 8. That was the big knee cutting incident when rubbing alcohol came in glass bottles. I tripped over my own feet while carrying a bottle to my mother, knelt down to pick up the pieces and sliced open my left knee. My mother scooped me up, grabbed my younger brother and sister and raced to the local clinic where she attempted to enter the emergency entrance, the white only entrance. As she tried to enter with me in her arms, a blood soaked towel wrapped around my knee, someone told her that she needed to go to the nigger entrance. She did.


What I learned from that experience was patience. No amount of language, foul or otherwise, no amount of defiant attitude impacts people who are driven by ignorance, hate, and downright stupidity. When Dr. King came along, he understood this. He preached nonviolence not because he was afraid but because he recognized that the real crazies were unreasonable and unreachable, but that the rest of American whites might still have enough of a conscience to feel guilt. Those peaceful marches weren't really peaceful except on the part of the protesters. They were beaten, attacked by dogs, fired upon with high pressure water hoses, murdered on dark highways and they met this violence with nonviolence. The other big factor was television. Images of people being subjected to violence were shown around the world and sympathy was with the nonviolent protesters.


Always image conscious, White America didn't suddenly acknowledge that all people are created equal but a significant number of them sought to disassociate themselves from the overtly racist extremists. Racism wasn't dead, but laws were passed that made its overt practice illegal. It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important.--MLK, The Trumpet of Conscience, 1967.


I tend to think in analogical connections and our current battle against the unfettered conservatism that threatens to devour our country reminds me of the battle that was fought against that other voracious monster known as institutionalized racism . The feelings of powerlessness, frustration, and fear expressed by my fellow liberals are understandable and no Pollyanna pep talk is going to change those feelings. I don't believe that people are naturally good at heart, but from what I've seen in my lifetime, I do believe that change can happen. Forty-five years ago, I couldn't drink from a public water fountain unless it had a sign above it that read, "For Coloreds Only." The world of my childhood and today's world are as different as night and day.


We are far from a post-racial society. I'm a big science fiction fan and I think of racism as being a creature like that of the Alien movies, incubating in the chests of some people until it breaks forth screaming, spreading destruction everywhere. In the movies,  Sigourney Weaver kicks its alien ass. Alas, Sigourney isn't available except on the silver screen, so we have to do our own ass kicking when it comes to racism and the disease known as the Tea Party.


To do this, we have to be better strategists than they are. Like Dr. King, we have to determine how best to overcome. Venting our frustration may be necessary on occasion, but anger and frustration do not generate solutions. Our strength is our ability to act rationally in the face of irrationality. I don't find the use of vulgarity offensive, just useless. Anger is exactly what these people best understand. King and Ghandi understood this. Meet irrational hate with anger and you feed the fire of their hate; meet irrationality with reason and persistence and your enemy is confused and does not know what to make of your response. For that reason, we must keep our wits about us because our strength lies in our rationality, in our ability to reason and though the path be rocky, we must continue to traverse it, one step at a time.

Politics and Reality

On occasion I feel the need to do a follow up piece to a post. Generally it's because someone makes a comment that makes me go, "That's not what I meant at all." I received such a comment on my last post on another blog for where I also publish, The Swash Zone. An anonymous comment dismissed my  post, Pragmatism, the Presidency, and Activism as being another piece comparing Obama to Lincoln, a topic which he or she is tired of hearing.

Thanks for the comments from others who have pointed out that I didn't write a piece comparing Obama to Lincoln. I still find anonymous' comment way off target and bearing no logical relationship to my actual post.

My focus was on the mythologizing that time tends to bring to our remembrances of the past. The Obama and Lincoln comparison, as well as the FDR and Obama comparisons have been unfavorably made for some time. Primarily the comparisons are used to depict Obama as weak and ineffective when compared to Lincoln and FDR. My analysis of Lincoln was to contrast the factual reality with the mythology that we've built around Lincoln. The abolitionists criticized Lincoln as weak and ineffective. They questioned his commitment to ending slavery. Lincoln's primary goal was not to end slavery it was to do whatever was necessary to preserve the Union. He compromised a great deal as did Roosevelt. I'll save that stroll down history lane another day. Interestingly, the group sold out the most significantly by FDR was African-Americans. (African-Americans and the New Deal)

Compromise is the cornerstone of legislation. No one ever gets all that he or she wants in a bill. Republican and Democrat doesn't really mean a great deal behind closed doors when bills are in their infancy; everyone compromises to give birth to a bill and curries favor so that when their side is presenting a bill they can call in those favors. The horror of this new crowd of inexperienced legislators is that they don't understand how the system works and they draw lines in the sand. All that they create are impasses. 

Obama's efforts at transparency have resulted in more public disclosure of the process and everyone believes that this is a significant change when this game is as old as politics themselves. Those same politicians in Congress who make great speeches condemning the opposition's position on an issue, go out afterwards and share a bottle of scotch. A great many politicians are lawyers. One of the first things that you learn as a litigator is that nothing in the courtroom is personal. To zealously represent your client, you're perfectly willing to suggest that opposing counsel is hiding some dirty secret, dishonest, and robs babies and the elderly for sport. During recess, it's possible that you will have lunch with the opposing counsel. Ex parte communications apply to lawyer/judge exchanges outside the presence of the other counsel but there are no rules that prohibit opposing counsel from sharing a drink or a meal. My point is that the moment the adversarial stuff is over, most everyone reverts to being just folks. Democrats and Republicans for the most part keep government functioning through the art of compromise.

The Tea Party Republicans elected in 2010 are for the most part a very inexperienced lot. Some of them have never held any public  office until they landed in the U.S. Congress. They are a different breed as demonstrated in the recent debt ceiling crisis. From 1981 to 2010, presidents from Reagan to Obama had no difficulties getting Congress to pass legislation increasing the debt ceiling regardless of the party in power in Congress. It was rational and logical that the President, nor most of Congress would anticipate the ridiculous holding hostage of the debt ceiling that took place in 2011.

The graph indicates which president and which political party controlled Congress each year.

My point is that all of the dramatic declarations that Obama has sold out the American people are hyperbole. That the role models to which he is unfavorably compared were not the darlings of their time either and were subject to the same criticisms regarding being week, unfocused, ineffective, a sellout etc. I also want to clarify that it is not criticism to accuse the President of the United States of being a traitor the the people and his country. A great many people appear to be unable to distinguish between criticism and character assassination. If you understand that distinction, then we don't have an issue.

It makes a lot of difference. If you state that the President should have held out for a public option in the health care bill, that's criticism. If you assert that the reason that he didn't push for a public option was because he was in cahoots with big pharma and offer as evidence of the conspiracy that there were meetings at the White House with big pharma, that provides fodder for those who are desperately looking for grounds to impeach the president. It's also naive. Of course pharmaceutical companies and hospitals and physician's groups were interested in exactly what affordable health care would mean to their business interests. They were provided opportunities for input. This is not a new thing. 

The critique of the President's actions is legitimate criticism. I don't support that point of view but it's certainly anyone's right to object to the actions of any elected official. However, the attribution of motives to the President involving a conspiracy with big pharma is character assassination. You can't then turn around as election day approaches and state with any credibility that you were just holding the president accountable but now plan to campaign to encourage people to vote to re-elect him. What kind of fool would vote for a dishonest scalawag who has betrayed the public intentionally?

All of these dramatic positions attacking the President's character from some progressives will affect his ability to run a successful re-election campaign. Protestations that Obama is a good guy and I'm just critiquing his flaws is bull. Recovering from criticism is a standard part of being a public official; recovering from character assassination seldom happens. Remember John Kerry?

Pragmatism, the Presidency, and Activism

I have repeatedly read posts by others who argue with great passion that President Obama should follow in the examples of Abraham Lincoln in addressing slavery and FDR in addressing the Great Depression. I appreciate the beacons that both former presidents are in the history of this country; however, what we believe to be true and what is fact often are vastly different.

A recent article, Frederick Douglass, the activist who would not 'grow up' offers a frame for evaluating the repeated criticism of President Obama from many members of the left. This article deals with President Lincoln as assessed by Frederick Douglass, not as a historian many years after the facts but as a witness to those events.

One of the most common misrepresentations of history is the oft repeated mantra that Lincoln freed the slaves. He didn't. The Emancipation Proclamation only applied to slaves that lived within the borders of states that were in rebellion against the Union; it did not apply to any slaves in the border states that were still loyal to the Union nor Confederate states which had already come under Union control; President Lincoln did not wish to lose the support of those slave owning states. The goal was to preserve the Union. As the Confederacy was not under the President's control, it did not accept Lincoln's offer to agree to the emancipation of slaves in exchange for compensation. The reality is that the Emancipation Proclamation was a grand gesture and of great symbolic value but it didn't free any slaves. [see for ex. pbs.org, thinkquest, national archives] In the year prior to the EP, 1862, Congress had passed a law that freed any Confederate slaves who escaped to the Union states and added those slaves to the Union's military ranks. Slavery did not officially end in this country until 1865 with the passage of the 13th amendment. [Id.] 

The factual details don't lessen what Lincoln accomplished. I offer this history lesson because I think that the adherence to mythology is interfering with the ability of progressives to get on the same page and work at the business of re-electing Barack Obama. Lincoln was no cowboy riding in on a white horse. He compromised on  what Frederick Douglass and  the abolitionists saw as the most significant cause of the Civil War, ending slavery. He did so because the Union could not afford to lose the slave owning border states to the Confederacy.

In 1862, Horace Greely, editor of The New York Tribune addressed an editorial to Lincoln in which he suggested that Lincoln's administration lacked direction and resolve in its war efforts. Lincoln responded with a letter to Greely that few seem to accurately recall:

My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. [Lincoln letter]

Frederick Douglass took issue with Lincoln's willingness to abide slavery if that was necessary to preserve the Union. However, Douglass was also pragmatic and eventually came to respect Lincoln's seemingly measured tread.  

In April 1876, in a speech delivered at the unveiling of the Freedmen's Monument in Memory of Abraham Lincoln,  Douglass said of Lincoln: 

...I have said that President Lincoln was a white man, and shared the prejudices common to his countrymen towards the colored race. Looking back to his times and to the condition of his country, we are compelled to admit that this unfriendly feeling on his part may be safely set down as one element of his wonderful success in organizing the loyal American people for the tremendous conflict before them, and bringing them safely through that conflict. His great mission was to accomplish two things: first, to save his country from dismemberment and ruin; and, second, to free his country from the great crime of slavery. To do one or the other, or both, he must have the earnest sympathy and the powerful cooperation of his loyal fellow-countrymen. Without this primary and essential condition to success his efforts must have been vain and utterly fruitless. Had he put the abolition of slavery before the salvation of the Union, he would have inevitably driven from him a powerful class of the American people and rendered resistance to rebellion impossible...Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined. [emphasis added] [Douglass' Oration]

Frederick Douglass was an activist and activists do not have to answer to a constituency, nor do they have to play well with others. There are those who no doubt will dismiss my evaluations of activism vs. politics as narrow and cynical. I intend it as neither, but simply pragmatic. 

Activism is an essential part of political and societal change but the demand that such activism be regularly and blatantly engaged in by this President is to ask him to go beyond the bounds of his office. I chose to focus on Lincoln because of sheer laziness. Lincoln has been a hobby of mine for years and I didn't have to do a lot of research. However, similar issues can be raised with FDR's presidency.

Douglass' evaluation of Lincoln doesn't diminish the man at all but it does make it clear that no man walks on water and offers a prism that reflects how I believe history will also view Obama. Just as was Lincoln, Obama is the President, not an activist. His responsibilities are vastly different than those of an activist. I believe that far too many are demanding that Obama take on a mythical role that no president has ever exercised. 

Bachmann just won the straw vote election out of a field of Republicans, any of whom is saner than she. I find that frightening. Rather than contributing to the constant criticism of President Obama and the continual refusal to acknowledge all that has been accomplished (an extensive list) our common goal should be to ensure that the President has a second term to work towards our goals. Douglass voted for Lincoln in 1864 in spite of his concerns and supported Lincoln's campaign. We have a president who understands the system and who is working that system with every tool at his disposal. What we need are activists; the campaign slogan has always been, "Yes we can." What have you done lately?

The 14th Amendment: Not a Magic Bullet

I don't know who first suggested that President Obama utilize the presumed authority of the 14th amendment to by-pass the need of congressional approval to raise the debt ceiling; however, it's former President Bill Clinton's endorsement of such a move that has stirred liberals and progressives to speak out in blogs and intense Facebook discussions in favor of the President "using" the 14th amendment. 

It sounds so simple. I've been practicing law for 14 years; I studied constitutional law and I'm not nearly as convinced as many of my non-lawyer friends that using the 14th amendment is possible. Frankly, it drives me nuts when people chime in about the application of constitutional provisions with little or no understanding of the background or context. It's about as valid as my coaching a major league baseball team; I like baseball but I don't know enough about the game to coach anyone. Yeah, I know, some of you feel insulted; however, that's not my primary intent. Just be happy that I'm not sharing my disgust with Nancy Grace and the public outcry following the Casey Anthony verdict. Instead, I'm providing a brief primer on this whole 14th amendment business.

The 14th amendment has never been applied in this context by any president so there is no precedent and no jurisprudence analyzing what specific authority Section 4 of the XIV amendment confers on the president with regards to the public debt.

Construction, i.e. the interpretation of constitutional provisions can be somewhat difficult when the language of the provision is ambiguous or unclear. Ambiguity opens the door for interpretation by the court and raises the issue of strict construction versus broad construction. Strict construction means interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions, and societal changes. In contrast "broad construction" looks to what someone thinks was the "intent" of the framers' language and expands and interprets the language extensively to meet current standards of human conduct and complexity of society. Justices Scalia and Thomas are known as being strict constructionist, insisting on interpreting the Constitution in terms of how the provision was applied at its inception and in is historical context. 

In this instance, it is significant that the 14th is one of the Reconstruction amendments (the 13th, 14th, and 15th amendments, enacted between 1865 and 1870). The totality of Section 4, the section in which Clinton and others find authority for the President to raise the debt limit without congressional approval reads:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Unfortunately, most people and the media quote only the first sentence. A big boo-boo in interpreting any law, including the Constitution, is divesting a provision from its surrounding language instead of analyzing the provision in its totality. 

The 14th amendment was added post Civil War or as some southerners prefer, the War of Northern Aggression. The intent at the time was to declare that the US was not going to pay any debts incurred by the Confederacy, which had borrowed money from England and France to help in its secession efforts. So Section 4 confirmed that all U.S. public debt authorized by Congress was legitimate and declared that neither the U.S. nor any state would be responsible for paying any debts incurred by the Confederacy for the war or the loss of slaves. The Confederacy considered slaves to be property and made some noises about reimbursement for the loss of their property.

The 14th amendment is also the source of the Citizenship Clause, the Equal Protection Clause, and the Due Process Clause. Arguably, those clauses were intended to be substantively more important than the Public Debt Clause. Narrowly construed, it may be argued that the Public Debt provisions were only to clarify that the United States was not going to be financially responsible for the debts incurred by the Confederacy and was not intended to confer power on the President to determine the amount of the public debt for which the federal government would be held responsible. A broader construction could certainly find that the language confers authorization on the President to increase the debt limit without congress' approval. However, given the conservative nature of the current court and the number of 5 to 4 decisions that have been issued by the court, decisions that reflect strict construction and narrow interpretations of the law, it certainly is not a given that the President could simply invoke the alleged authority of the 14th amendment and increase the debt limit. 

Bill Clinton is a lot more certain than some other constitutional scholars in his belief that the 14th amendment allows Obama to raise the debt ceiling without congressional approval. It may be possible but there is certainly the risk that doing so will provide the Republcans with the excuse to begin impeachment proceedings. Clinton managed to survive his impeachment relatively unscathed but I don't know if Obama has as much teflon coating as Bill Clinton and the charges may stick. Even if there is no impeachment effort, there will likely be a challenge in the courts as to the president's authority to act under the 14th amendment. Given the current conservatives on the court, it would likely be an uphill battle for the President and he could fare like Sisyphus and find himself unable to push his rock all the way uphill.

I'm not saying that president Obama shouldn't or that he should use the possible authority of the 14th amendment, just laying out the issues. The media headlines oversimplify the issues as they generally do when it comes to the law, particularly the Constitution. In law there really is no such thing as a simple "yes" or "no" when the question is, can I legally do that? It depends...

What I am challenging are those who shout for the President to just use the 14th amendment as if it is a given that such an action is prudent and will be successful. Our government has always been about compromise. When this country could not find a point of compromise on the issue of the expansion of slavery in a growing country, we engaged in a civil war that devasted the entire country and resulted in a major lose of life on both sides. Compromise is not a four-letter word and I shudder to think of the possible alternative.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. --The Gettysburg Address, Abraham Lincoln, 1863

Dear Speaker Boehner

John Boehner & Eric Cantor

Imagine if Speaker of the House John Boehner received millions of emails and phone calls telling him that we're mad as hell and demand that he and the Republican party cease and desist from its efforts to sacrifice our children, the elderly, low wealth, and working class families on the altar of tax cuts for those most capable of paying taxes. Stop imagining and contact Boehner's office, (202) 225-0600, shut down his phone lines, and give McConnell a call too, (202) 224-2541. If you can't reach Boehner's office by phone, send him an email. You don't have to be in Boehner's Ohio district, you may contact him in his capacity as Speaker of the House using this link. 

Below is my email to Boehner that I sent today.

Speaker Boehner,
I've voted in every election since I became eligible to vote, that's over 35 years ago. Members of the U.S. Congress do not represent only their districts but the well being of the entire country. As Speaker of the House, you are responsible to all of us; the people are the government.

I am dismayed at the continual efforts of your party to support tax breaks for the wealthiest 2% in this country. I am insulted that your party continues to try and persuade the voters that this is in their best interests. The theory of trickle-down economics has not worked in spite of efforts to insist that it will benefit the people of this country. The haves continue to gain more and the have-nots continue to have less. This policy has not been shown to create more jobs.

Our country is in debt and the revenues from letting the tax breaks for the wealthy expire would add considerable monies to our coffers. The justifications offered for not allowing the tax breaks to expire are ludicrous. The loopholes that allow major corporations to avoid paying taxes are ludicrous. Your party's refusal to listen to the will of the people is ludicrous.

Your party's position is that we have a spending problem and not a revenue problem. This is beyond ludicrous. We have a deficit problem. When your expenditures exceed your revenues, it is certainly appropriate to make cuts where possible but it is also prudent to engage in methods to secure additional revenues. To put it simply, if my expenditures exceed my budget, I cut back on spending. However, I don't also refuse to take steps to increase my income.

I can't say that I will no longer vote for your party; I never have and most likely never will. I will say that the destruction that you sow if you continue with this shortsighted policy will affect generations to come, and you and your party will earn the dubious distinction of having sunk the American economy.

Speaker Boehner, work with the President, not against him.

It's time to tell these elected officials that we're mad as hell and we're not going to take it any more. Give the President your support. He cannot stop the Republicans simply because he says so. He's the President, not a dictator. To those of you still insisting that he caved on the extension of the tax rates, get off that ride. He did not have the votes to end the tax breaks for the wealthy. If he had vetoed the bill that extended those cuts, his veto would have been overridden. Yes the Democrats were in control but all Democrats were not loyal. Instead of taking a symbolic stand that would have resulted in failure any way, the President used it as an opportunity to ensure the continuation of elements of the tax code such as the earned income tax credit (EITC) that directly benefit low wealth families.

If you want to do something now, if you want to fight the good fight, then make Congress hear that we will not accept the extension of the tax cuts for the wealthy. Making a few phone calls and/or writing an email will take you all of 15 to 20 minutes. Stop talking and start doing. I can't guarantee success but if we all do nothing, I can guarantee failure.

Find and contact your senators. 

Find and contact your representatives.

The Significance of the Walmart Decision

A Facebook friend asked for input from lawyers about the Walmart v. Dukes opinion recently issued by the Supreme Court of the United States (SCOTUS). I'm still recovering from a series of 14 and 15 hour days as our state legislature rushed (for no apparent reason) to end the session by June 18. Except, it's not really ended, just on recess until July 13 (more on this topic on another day). My response to his inquiry is below. Nothing fancy. My brain is muffled in cotton.

There were two major questions for SCOTUS to address in this case.

First Question: I concur that the 9-0 vote on the procedural question, certifying the plaintiffs as a class, is not an issue. The group was far too large and lacking in commonality to certify as a class. The proposed class was too broad; it would have included every female Wal-Mart employee since late 1998, and it's a stretch to assume that they were all victims of gender bias.

Second Question: However, SCOTUS split 5-4 on the question of sending the case back to the trial court to determine whether it could proceed in a narrower form. Justice Ruth Bader Ginsburg, a member of the minority on the latter question, warned that the Wal-Mart ruling would leave legitimate bias cases “at the starting gate.” Ginsburg, Sotomayor, Breyer, and Kagan all dissented from the majority on this second question. Ginsburg wrote the dissent.

Justice Scalia, who wrote the majority opinion, significantly restricts the rules defined by Congress for class-action lawsuits. Scalia argued that plaintiffs can gain a court’s certification of a class to pursue job-discrimination claims only if they can show “some glue holding the alleged reasons for all these decisions together.”

In other words, they must show that they are likely to win their case, to meet the “glue” test, a term that Scalia leaves undefined. What does it mean? How will it be determined that the "glue" test has been met? It appears that alleged victims of discrimination will, in the future, have to meet this test before they even will be allowed to certify as a class. It appears from the opinion that if discrimination is alleged in a wide enough variety of employment categories and locations, the plaintiffs cannot make a showing of commonality,without such a showing, they can't be certified as a class.

The other legal analyses of this case that I've read conclude that such a standard makes the cost and difficulty of bringing a class-action suit virtually prohibitive. So the Wal-Mart employees who want to continue to pursue their case will have to sue the company individually, if they can afford to do so. Or they can give up. This is what all the concern is about, not the decision that there were too many members and not enough commonality to certify them as a class.

In my legal opinion, the Supreme Court has increased the difficulty of seeking redress for illegal discrimination by employers through the use of class action lawsuits.

The entire opinion, including the dissenting opinion on the second question may be found at: Walmart v. Dukes.

Herman Cain: A Different Shade of Black

Herman Cain

Where do I begin? I thought that Sarah Palin was a scary person but Herman Cain is definitely in the same league.

In case you haven't heard, Herman Cain has announced his candidacy for president of the United States. Cain's basic platform appears to consist of a love for free market enterprise and an antipathy for too much government. It's no wonder that he's a Tea Party darling and the icing on the cake is that he's black. One person commenting on a news story about Cain's candidacy opined that Cain is a liberal's nightmare because, "His election would completely invalidate their lame argument that if oppose Obama, your a racist." (sic)

I checked out Cain's presidential campaign web site and I think that Palin writes his material. A verbatim example of his wisdom: To change the economic course of this nation, we must change the occupant of the White House, electing someone who understands the power of empowerment.

What does that sentence mean? What is the power of empowerment? Just what this country needs, another politician spouting meaningless rhetoric.

Another trait that Cain shares with Palin is that he also slept through civics class. According to news reports of his announcing his candidacy for president, Cain encouraged Americans to read the Constitution, admonishing us, “Keep reading,” he said. “Don’t stop at life, liberty and pursuit of happiness.” Herman, I hate to break this to you, but you're in the wrong document, the Declaration of Independence and the Constitution are not the same. Life, liberty etc.--that's in the Declaration.

However, Cain's bag of tricks extends beyond the usual assault on "entitlements" and government interference with the right to destroy the environment. Cain is a bona fide homophobe. According to Cain, “I believe homosexuality is a sin because I’m a Bible-believing Christian, I believe it’s a sin.”

Cain's pontification on the righteousness of his homophobic bigotry sits well with his likely supporters. I don't believe that there is any entitlement to be a bigot. I know that there is no entitlement to impose your bigotry on the rest of us. Backing up bigotry with the Bible doesn't change anything; Cain is an ignorant man who spreads hate in the guise of personal morality.

One of the most difficult truths for me to accept is that being a member of a group that has suffered oppression doesn't endow someone with any more insight into the evils of hate and discrimination than those that have traditionally played the role of oppressor.  Nonetheless, it still assaults my sense of justice whenever a black person espouses a belief in the right to discriminate against some other traditionally oppressed group.

I wonder if Cain recognizes that he is being used. Maybe he doesn't mind as long as the payoff is 15 minutes of fame. He's the perfect poster boy for the Right; a black man with business credentials who opposes government spending, supports big business, and waves his Bible while advocating for bigotry. The Right can point to him and declare, "See, we're not racists."  Gee, makes me want to run right out and sign up as a Republican; hell, I may even join the Tea Party. Then again maybe not, after all, I have chores to do.

Cornel West and The Blackness Patrol

I'm not a fan of Cornel West nor his buddy in the "Obama isn't black enough" club, Tavis Smiley. West identifies himself as a part of the black intellectual elite and as such, fully expected that he would play a pivotal role in Obama's campaign and be an often consulted advisor of the nation's first black president. His issues with Obama began when Senator Obama was running for office. The commitment that West, Smiley and others demand from Obama is to support black interests at the costs of all others.

Yesterday, columnist Chris Hedges' graced us with an article entitle The Obama Deception: Why Cornel West Went Ballistic. In the first line of the article, Hedges dubs Cornel West a moral philosopher and a voice of moral conscience if Obama's ascent to power was a morality play. Funny, I don't recall any meeting of black folks to elect West as our moral compass. If any of y'all took part in this vote, drop me a line and tell me when and where the election was held.

A telling story on West is that he was livid that he did not receive tickets to the inauguration. I have to wonder how much of his criticism of the President is motivated by his hurt feelings that he has not been included in the President's inner circle. The point of West's diatribe against Obama that he shared with Hedges appears to center on West's belief that Obama is a sellout who is a white man in a black skin. West pontificates at length on this topic:

“I think my dear brother Barack Obama has a certain fear of free black men,” West says. “It’s understandable. As a young brother who grows up in a white context, brilliant African father, he’s always had to fear being a white man with black skin. All he has known culturally is white. He is just as human as I am, but that is his cultural formation. When he meets an independent black brother, it is frightening. And that’s true for a white brother. When you get a white brother who meets a free, independent black man, they got to be mature to really embrace fully what the brother is saying to them. It’s a tension, given the history. It can be overcome. Obama, coming out of Kansas influence, white, loving grandparents, coming out of Hawaii and Indonesia, when he meets these independent black folk who have a history of slavery, Jim Crow, Jane Crow and so on, he is very apprehensive. He has a certain rootlessness, a deracination. It is understandable."

Dr. West, you're full of crap. West is a professor at Princeton, not exactly in the hood. What credentials does West posses that qualify him to define blackness and exclude those whom he feels don't do "being black" right? It's a rhetorical question; he has none. It's difficult enough being marginalized based on skin color without the further complication of having members of your own group decide that you don't measure up to some arbitrary standard of membership in the group. West also takes issue with Michelle Obama, questioning why she doesn't visit a prison or "spend some time in the hood." 

West and Rev. Al Sharpton engaged in heated debate at Smiley's recent annual State of Black America conference. Sharpton insisted (rightly I believe) that Obama is the president of all the people and that promoting policies that benefit all Americans will benefit black Americans. West insisted that Obama has become the soul of darkness itself, betraying the poor, particularly poor black people. However, I don't think that West's ire comes from any real belief that Obama is the anti-Christ; he's upset because Obama stopped calling him on the phone.

“There is the personal level,” he says. “I used to call my dear brother [Obama] every two weeks. I said a prayer on the phone for him, especially before a debate. And I never got a call back. And when I ran into him in the state Capitol in South Carolina when I was down there campaigning for him he was very kind. The first thing he told me was, ‘Brother West, I feel so bad. I haven’t called you back. You been calling me so much. You been giving me so much love, so much support and what have you.’ And I said, ‘I know you’re busy.’ But then a month and half later I would run into other people on the campaign and he’s calling them all the time. I said, wow, this is kind of strange. He doesn’t have time, even two seconds, to say thank you or I’m glad you’re pulling for me and praying for me, but he’s calling these other people."

West does deal with some substance as to his issues with Obama. He feels that Obama has betrayed his populist promises, adopting a centrist agenda instead of the progressive populist agenda that Obama promised during his campaign. I give West some credit on this point. I think that on many issues Obama has chosen to be centrist or as West puts it, an advocate of a neo-liberal centrist policy in the same mold as Bill Clinton. I don't think that's a bad thing. I'm a pragmatist and I never believed that Obama would be able to implement a purely progressive agenda in less than a single term. Change is always incremental unless it's done through revolution, which seldom works out well as the lofty goals of the revolutionaries are soon corrupted.  West never fully fleshes out the specifics of his issues with Obama's presidential policies and decisions; instead he goes off on another rant declaring that the President "...feels most comfortable with upper middle-class white and Jewish men who consider themselves very smart, very savvy and very effective in getting what they want...”

West does raise concerns about the have-nots in America, the people who have been marginalized and haven't fared well under any administration, including the current one. I could get behind a push to urge Obama to take more aggressive steps in addressing eroding poverty in America but I don't buy into West's vision of himself as a prophet shouting the truth in the wilderness nor his vision of Obama as Darth Vader embracing his dark side. Clearly there is a lot of work to be done but the President has given no indication that he is unaware that the journey has only just begun.

Hedges is late to the party. West's rants against the president are nothing new in black media.  He and Smiley had a hissy fit when candidate Obama declined to attend Smiley's annual State of Black America conference. Smiley has declared himself the voice of black America over the last decade and West has bestowed his blessing on Smiley. The other third of this triumvirate of blackness is Michael Eric Dyson, who joins Smiley and West in measuring the President's blackness and finding it insufficient. If you are truly interested in keeping up with what a lot of black people are talking about, add Black America Web to your bookmarks.

For another perspective on West and Hedges' article, please check out this article by Melissa Harris-Perry, an associate professor of politics and African-American studies at Princeton University and a colleague of West,  Cornel West v. Barack Obama.

Clearly, I don't believe that the President is immune from criticism; neither does the author of the article that I recommended above. I think that he has made missteps and errors in judgment. However, Hedges' article isn't about those errors and missteps as much as it is about Cornel West, a man with a self-inflated ego who is peeved that his "greatness" is not fully recognized by the President.

An Iceberg in the Sea of Ethics

In civilized life, law floats in a sea of ethics.--Earl Warren

I've been thinking a lot about the killing of self-proclaimed terrorist, Osama bin Laden. My issue is not with the guilt or innocence of Osama bin Laden. He has declared himself responsible for 9/11; even if he's not, just wanting the credit suggests that if not 9/11 then he is responsible for other acts of terrorism. However, even if the police catch a person strangling the body with bare hands that person is still entitled to dues process under our laws which means a trial, a judgment, and a sentence. Even if that sentence is death, we don't simply execute someone without the benefit of due process, even when guilt is certain. Indeed, in our justice system, confession is often about brokering a deal, generally to take the death penalty off the table. In other words those who declare I did it gain a reprieve from execution and generally receive a sentence of life imprisonment in exchange for saving the state the cost of a full prosecution.

Traditionally, adherence to a system of justice that strives for fairness and an even application of law is taken as a significant mark of civilization. We, as a nation, certainly criticize and strongly object to the paths of nations that imprison without trial, punish without due process, and eliminate undesirable elements by simply executing them.

Our track record in recent years has not been good. We invaded Iraq based on false information which more and more evidence supports that our leadership knew to be false. We have imprisoned people at Guantanamo without benefit of trial which violates the Constitution in which many of us purport to believe. We have consistently refused to acknowledge that these prisoners, who haven't been officially charged with anything, have a right to a speedy trial, having made up a new term to apply to them, "enemy combatants." They are neither prisoners of war nor prisoners of our legal system, expressly so that they may be denied the due process owed under military law or civil law. I think the summary execution of bin Laden is yet another misstep on the part of this country. We insist to others that it is not might that makes right but that laws ensure justice for all. Yet in this instance we behaved much the same as any of the governments whom we have criticized in the past, acting as judge, jury and executioner and bypassing even a semblance of justice. Papa Doc and Idi Amin should not be our role models.

Funny thing is, the outcome would have been the same. No doubt bin Laden would have been found guilty and sentenced to death but in the eyes of the world we would have appeared to adhere to the higher standard for which we have so strongly advocated since the founding of this country. We haven't always reached that standard, but if a man or a woman's reach does not exceed his or her grasp, then what's a heaven for? (my thanks to Robert Browning)

I take issue with assassination as justice, no matter how vile the person. When we make exceptions to our ethics, to our code of law,  we lessen ourselves, betray our own integrity. My concern isn't for bin Laden, but for this country's ability to claim moral authority (which we do quite often) after this assassination. Imagine any other country entering a nation uninvited and killing a person who by its own account was not armed because of some terrorist act that person allegedly committed against its people, how would we regard that action?

Fellow blogger, Elizabeth, shared a passage from an article by Noam Chomsky that fleshes out my rhetorical question.

We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush's compound, assassinated him, and dumped his body in the Atlantic. Uncontroversially, his crimes vastly exceed bin Laden's, and he is not a "suspect" but uncontroversially the "decider" who gave the orders to commit the "supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole" (quoting the Nuremberg Tribunal) for which Nazi criminals were hanged: the hundreds of thousands of deaths, millions of refugees, destruction of much of the country, the bitter sectarian conflict that has now spread to the rest of the region.