Wednesday, November 30, 2016

The Ironies of the Law

Not mentioned in accounts of Trump's statements calling for prosecution of flag burners is the concurrence of the late Justice Antonin Scalia in Justice Brennan's majority opinion in Texas v. Jackson, the 1989 flag-burning decision. Scalia did not write himself but apparently supported this decision in one of the occasional instances of his libertarian spirit emerging from his usual originalism which generally was synonymous with conservatism. This put him at odds in that court with dissenters Rehnquist and Stevens, both of whom in this instance put patriotism above freedom of expression. 

We also have been invited to review Scalia's majority opinion in D.C. v. Heller, the gun rights decision. I suggest that if you place Scalia's text up against Stevens's dissent, which was the principal dissent in the case, Scalia's analysis of the history of 2nd Amendment interpretation comes up as thin and unconvincing compared to Stevens's solid presentation of more than 200 years of clear understanding that was now being ignored. Some of Scalia's partisans have compared his majority opinion in this case to Breyer's dissent, which called for balancing. I find myself in agreement with the critics of balancing, for Scalia did have that right in arguing that any time a judge calls for use of a balancing test, the balance seems to come out along the lines the judge prefers.

While no one can doubt Scalia's clear conservatism, his libertarian streak makes me feel that the way Supreme Court justices now are selected, especially by conservative, i.e., Republican, presidents, makes it less likely that we will have strong-minded justices who are not bound to one side or one theory. 

Obama's behavior in appointing or trying to appoint justices stands in stark contrast to the GOP practice. He selected Sotomayor and Kagan, who while clearly tending to emerge on the "liberal" side of the bench, are not entirely predictable in their views. Garland, of course, was the perfect nominee from the standpoint of those who want a fair, even-handed justice, who may have tilted slightly toward the progressive side but also whose temperament was tempered by his many years as a Justice Department attorney representing the government.

We are likely to get more predictable appointments like those of Alito or Thomas. Justice O'Connor reportedly was dismayed by Alito's being named to replace her; she sensed he was a doctrinaire conservative but she had precipitated the situation by adhering to the party loyalty rule of retiring during an administration of her party. The most egregious act in Alito's appointment was the appearance before the Judiciary Committee of a legion of Third Circuit judges rounded up by the late Chief Judge of that circuit, Edward Becker, who was an outright Republican even when on the bench.

Now we may get appointments from the somewhat notorious list of judicial conservatives put together by Trump's campaign. Given the partisanship that has now subsumed the process--Clinton and Obama tried to name justices closer to the center, which means that the center has moved rightward as Republicans named solid right-wingers: Breyer and Kagan, for example, are no Brennan or Marshall--we should expect to see judges in lockstep with right-wing opinion being named. 

We are also likely to be stuck with the practice of naming judges to the court rather than some others with legitimate practical experience gained from being legislators or practicing lawyers. O'Connor was the last legislator and Marshall the last justice with a distinguished background in practice.

Sunday, November 27, 2016

Back on Broadway

Two shows I caught this holiday weekend--umpteenth revival of The Front Page and Manhattan Theater Club's Heisenberg. Latter is a two-character, minimal set drama about a May-December encounter--she American, he English--with some unexpected twists. Mary Louise Parker, whom I've seen before in Proof, is the extroverted Georgie and Dennis Arndt, the older introverted Alex, who is actually Irish but is essentially British in his manner.

Yes, it concerns uncertainty which is the only connection to the title. But it also tries to open up all kinds of avenues of thought without really opting to follow any of them. To me it was unsatisfying, never seeming to get to the heart of what is going on between the two. Simon Stephens, the playwright, is doodling with the concept and I felt it all came up short.

The Front Page is a cornerstone of the American theatre. Ben Hecht and Charles MacArthur caught the romance of the newspaper game in this fast-moving, repartee-filled gem from 1928. There's likely few alive who got to see the legendary Osgood Perkins (father of Anthony of Psycho fame) and Lee Tracy, the original leads.

As a whole, the production is beautiful. The shabby press room of the Chicago Criminal Courts Building and its inhabitants are marvelously presented. John Slattery is the star reporter who is the co-lead, ably supported by the likes of John Goodman, Lewis J. Stadlen, and the still-extant Robert Morse in a delightful, small, but key role.

One review, however, pinpointed the mid-second-act arrival of Nathan Lane as the co-lead, everyone's most iconic man-eating managing editor, Walter Burns, as the moment that sends the play into orbit. And it is. However, that's not to demean the first act and a half, which set the scene in fine fashion.

It's hard to think that anyone doesn't know this show: Jack Lemmon and Walter Matthau did it in the movies (so did Adolphe Menjou and Pat O'Brian, which takes you back a few more decades). Heck, Howard Hawks re-made it in the late 30s with Cary Grant as the m.e., and Rosalind Russell as His Girl Friday, the star reporter. 

I do vote for Lane as the Walter Burns for the ages. He's absolutely magnificent. And the 88-year-old drama still has plenty of laughs and maybe even a bit of wisdom to convey to us in a very changed era for the newspaper business. 

Tuesday, November 15, 2016

After the deluge

It was tempting to refer back on election night to Murray Kempton's memorable column in the '50s (I think it was '56) when writing in the late, lamented New York Post of those days about another Republican triumph: Eisenhower over Stevenson. His theme was "Don't tell me things will get better. Yesterday, the sun didn't shine on me, brother." He was taking the occasion to show his profound disappointment. (In retrospect, it's extremely ironic that Eisenhower turned out much better than expected.)

Yes, I wanted Hillary to win, more because the Republicans are always worse every time than they were the last time than because Hillary was so wonderful or even that Trump was so awful. He's a pragmatist, and likes to negotiate deals. The worst thing about his victory is the GOP flotsam and jetsam he brought in with him--tell me that Giuliani, Christie, and Gingrich aren't far worse than Trump any day.

I wish that this disaster for the pollsters would decrease the huge emphasis on polls in all of our news coverage. They blew it, pure and simple. But we will still see them prominently positioned every day because the broadcasters and reporters love a horse race, far easier to cover than discussing serious issues. 

I hope the Dems will shed some of their wimpish behavior and be prepared to fight this time when the usual GOP horrors are put up for the Supreme Court. Cries for unity are ridiculous--coming from McConnell and Ryan who admittedly did everything they could for eight years to frustrate everything Obama aimed to accomplish? And Obama too now talks that unity rot because he's more interested in his legacy than rebuilding the Democratic Party--showing how he blew the midyear elections twice under his watch. 

Chuck Schumer has the rep of being a fighter. Too often, of course, he fights for the interest of Wall St. But he needs to lead his troops effectively. If we get a Clarence Thomas this time, the nomination must be fought all the way--Joe Biden is the culprit for Thomas's making it on the court because the Republicans ran rings around the then-hapless Biden. Make them use the nuclear option. They'll regret it.

Obama disappointed me. He didn't really care about fighting hard. He let the pols write Obamacare and ended up with a mess. He let himself be held up by the two-bit insurance mouthpiece Joe Lieberman and should have denounced that pompous windbag owned by Hartford. In the end, Obama was afraid to push real change. And Hillary failed to give people a reason to back her. She played identity politics and yes, negative campaigning.

I liked Bill Clinton and recognize that when he was running, a Democrat had to look like he wasn't a wild-eyed radical to win. Clinton was a natural politician who related to regular people. Hillary never has been like that. Bill Clinton has done too much to soil his image and made too much easy money to be credible now. I was skeptical of Bernie Sanders but on most things, it turns out he was right. If he had won the nomination, they would have red-baited him but maybe it would've been better to go down that way.

Friday, October 14, 2016

Bezbul's Been Bery Bery Bad

Fortunately, although I enjoy baseball, I've never lived nor died with a team. Perhaps that's something I've missed but I don't expect so. Baseball is a show that offers immense delight, mainly because every game is so different from the previous one. And there's something special still about being in the ballpark.

I've been in many of them. Nats Park is nice, especially because as well-designed as the Orioles' Camden Yards is, Nats Park is the first one that is defiantly not modelled after the Yards. It has its own character. I'm of course a traditionalist in that I despise the constant noise that the teams and leagues now think fans must be deluged under at all times. It was once pleasantly refreshing that the park would be quiet until something excited or something that could be anticipated to be exciting occurred.

Now not only is it always oppressively noisy but you are demanded to clap or toss your cap or stand up or do something. Real fans never needed any of that. I even remember with affection that the "Charge!" call that follows a horn blast was once initiated--in the L.A. Coliseum, I recall, soon after the Dodgers left Brooklyn for L.A.--with a few guys around the stands who blew their own horns, not the P.A. system.

Last night, I attended the third fifth-game of the opening playoff series that the Nats have been in during their existence. As on the earlier occasions, they blew it, helped along by a manager who made the wrong strategic decisions at critical moments. He stuck with Max Scherzer for one batter too long but even worse, brought in two successive ineffective relievers.

Probably not as awful as earlier managers--Davey Johnson and Matt Williams--relying on the clearly shaky Drew Storen to save fifth games in the ninth. Davey had a tendency to freeze and not act when he needed to, and Williams just made one bad move after another, to the point where the excuse that he was a tyro was irrelevant.

Writers have excused the third-base coach for his idiotic decision to send Jason Werth home when he would be out by 30 yards. I would fire him. Those decisions in crucial moments of decisive games are what you hire coaches to make. And to win a playoff series, you can't make mistakes. Being stranded on base is one thing but being sent to your doom by a moronic coaching call is entirely different.

For decades until 1955 the Dodgers seemed to be spooked. In The Year The Yankees Lost the Pennant, a novel that came out in 1954, the character who was the Devil, a Yankee fan naturally, gave a benighted Washington Senators fan the chance to be a young star who would best the Yankees finally. When he scores the winning run despite being turned back to old age by the Devil, who whatever other powers he may have, could not convince an umpire to change his call, the Devil pleads with him to join up again for the Series.

"Without you the Senators can't beat the Dodgers and those Dodgers have never won a World Series," the man in red, played in the musical Damn Yankees by the wonderful Ray Walston, urged. So then in 1955, Next Year finally arrived for Brooklyn, followed two years later by the desertion of America's favorite losers, now winners, to the West Coast. 

The Nats can't blame the Devil this time or the previous two, just themselves, that their managers--like the other two touted strategists this year--Buck Showalter and Bruce Bochy--came up short when it counted.


Tuesday, October 11, 2016

Columbus

I grew up in an Italian neighborhood and went to Columbus School, so clearly I've been indoctrinated enough so that I'm not inclined to view the Admiral of the Ocean Sea as one of history's greatest villains. But this is a good occasion to consider how we apply what may be more advanced ethical concepts to the persons and events of the past.

My first thought here is that we need to be careful about how quickly we judge according to our contemporary outlook, however accurate or not it may be. As the Holocaust survivors and World War II veterans disappear, will be still harbor suspicions about current-day Germany? Those same vets made most feel that using the atomic bomb saved millions of lives--those of our servicemen who would have died in an invasion of Japan. 

Today some assert that dropping the bomb was a war crime. Others suggest that interning Japanese on the West Coast in 1942 was wrong. Very little consideration is given to the fact that expecting a Japanese invasion was far from out of the question then, nor was it clear that we were going to win World War II in either the Pacific or Europe.

The line that might well be drawn occurred right after World War II at the trial of General Yamashita, the "butcher of Malaya." The general's defense was that Allied--American--success in vanquishing his army led to his loss of direct control and thus allowed atrocities to be committed. His defense was summarily rejected at the war crimes trial in Tokyo, as well as by the interim emperor, Douglas MacArthur, and then by the postwar Supreme Court majority, with only the two most radical justices ever--Murphy and Rutledge, not Black and Douglas--dissenting, citing Tom Paine.

The world does sanctimoniously single out Israeli occupation of the West Bank for condemnation, but who but extreme partisans would defend Netanyahu's behavior toward expanding settlements and his attempt to interfere in U.S. politics. The world has seemed to ignore genocide in Rwanda and Sudan, but not in the Balkans, perhaps because both Serbs and Bosnian Muslims qualified as white.

And last but not least in terms of a loss for hypocrisy, the murders in the Charleston church seemed to turn the tide against the Southern revisionism that successfully depicted the antebellum South as a land of chivalry and happy slavery. The Jeff Davis Highway and J.E.B. Stuart High School across the river in Virginia may be renamed. We may finally escape the image created by Gone With the Wind and Birth of a Nation (1915 film, that is).

Thursday, September 29, 2016

Third Party Practice

There's rarely much to be gained from supporting a third-party candidate for President. Despite his recent efforts to shed the appellation "spoiler," Ralph Nader did cost Al Gore the 1980 election. Ross Perot, in contrast, aided Bill Clinton's victory by drawing more from the Republican side. Neither ever had a realistic chance of winning on his own.

But now we are presented with Gary Johnson, former governor of New Mexico, who has outdone some other egregious candidates in his gaffes regarding basic foreign policy familiarity. You don't have to be a policy maven or wonk to be able to respond to simple questions about international leaders and the situation in Aleppo. Not to know what either is strikes me as ludicrous in a serious candidate.

This lacklustre performance merely emphasizes the danger in supporting candidates who only can play that spoiler role. Yes, at least one of our major-party candidates is a disaster, but that does not excuse assuming a righteous, above-it-all attitude justifying voting for someone who has no chance except to possibly flip the election result.

I suppose where I'm going is to say that a protest vote is fine if it really doesn't make a difference, but it made a difference in 2000, especially with a Supreme Court jumping into politics with a ruling that defiantly proclaimed it was not a precedent. It could well make a difference in certain key states this time. This is no year to throw away your vote.


Tuesday, September 27, 2016

Double Feature

This Saturday, we went to a one-man show, Satchmo at the Waldorf, presented by the Mosaic Theatre Company at the Atlas Theater on H St., NE, DC. It's been extended through this coming weekend and Craig Wallace, who plays Satchmo, as well as his manager, Joe Glaser, and the younger musical jazz star, Miles Davis, is absolutely outstanding.

This takes place in Louis Armstrong's dressing room when he was playing the great venue, the Empire Room at the Waldorf, a few months before his death at 71. The conflicts that raged within him, as he had become the most famous trumpeter in the world by pleasing white audiences are all articulated as he recalls his starting out and his coming of age. Davis and the younger jazz musicians see him as an Uncle Tom because he smiles and plays pop hits to please his fans.

His conflict with his late manager, whose financial dealings left Armstrong much less well-off than he should have been, come to the fore as well, although the explanation that emerges is a good dramatic turn in the play. It's 85 good minutes in the theater--very enjoyable.

Then we went to the Nationals Park to attend Opera in the Outfield--all right, we sat in the third-base line stands to have at least the backing of a seat--where they did a live transmission of Washington National Opera's ongoing Marriage of Figaro from Kennedy Center. Traditional but pleasant production, with excellent performance by Alicia Majeska as the Countess. Everyone else makes up a fine ensemble, with the notable presence of Elizabeth Bishop, Fricka in last year's Ring, in the minor role of Marcellina.

Figaro, from the Beaumarchais play and written in the 1790s by Mozart and DaPonte, caries forth the story of the clever servant who first helped Count Almaviva win Rosina in The Barber of Seville, which precedes Marriage in time although the opera was not written until the 1820s by Rossini. But this opera--one of the oldest in the repertoire--is still revolutionary. As with Cosi fan tutte, the women outwit the men and in this one, the servants are always a step ahead of the master. 

The music is glorious and was well conducted by James Gaffigan. In some ways this was one of the most enjoyable presentations of this major opera that I've seen. The four acts were combined into two and the show still ran 3 1/2 hours but who was noticing? Not I. 

Once I went with our work group to see this during my first overseas court project in Vilnius, Lithuania, at a beautiful modern opera house. My hosts wanted to leave at the end of Act III for a special reception but the opera company, as often occurs in these productions, ran Act III and Act IV together so I quietly mentioned to one of the rest of the group (mostly non-opera types) that Act III just ended and saw his face fall, since it was clearly going to be impossible to get a large group out in the middle of the performance.

Never did make it to the reception but the coffee bar at the opera during intermission had the thickest, most wonderful hot chocolate I've ever tasted.