Outside Counsel

Of the 2000 Presidential election it has been said that the margin of error exceeded the margin of victory-- an interesting thing, since what it means is that the ability to accurately count the votes cast was too complex for our existing computational methodologies. Whether this means that the nation is so deeply divided that strictly democratic solutions are no longer an adequate approach in and of themselves is not really the point: that's not how our government is really set up. We're not a Swiss canton, after all, and that sort of direct democracy operates in an environment closer to the Rouseauian ideal size, where counting is less of a problem. Still, it is interesting that we are looking at a Democratic nominating process where the same thing seems to be taking place. The New York Observer reports that, "[i]f Michigan’s and Florida’s delegations remain unseated, there will be approximately 4,047 delegates at the August Democratic convention, making 2,024 the magic number for either candidate. Right now, Obama has 1,631 (including superdelegates), to Clinton’s 1,499—a difference of 132 delegates. And in the officially meaningless but symbolically important cumulative popular vote, Obama leads Clinton by just over two points—a margin that is basically cut in half when Florida is included."

It doesn't help that the count is complicated by the differences between caucuses and primaries, but that's not the point. The fact is that the process isn't set up to work on the basis of a strict popular vote count, and that seems like a good thing to me. The "superdelegate" tier invests the nomination machinery with some discretion, and that seems like a sensible system when we are talking about elections which are too close to count properly.

Judged a couple of moot court rounds this morning, this time the Herbert Wechsler National Criminal Law Moot Court competition. I like the inter-scholastic moot court competitions because the level of advocacy is strong, and because it is interesting to see how other law schools approach it. The cases are, typically, well outside any of the areas where I can claim to know what the hell I'm talking about, so I'm like a real judge, looking to be educated on the issues. I'd have liked a stronger bench brief today, but our topic happened to be something I've thought about: it was an Eighth Amendment question.

Eighth Amendment jurisprudence is a mess. You can't really be a strict constructionalist, because not even Justice Scalia believes in flogging (aloud, anyway). You can't really take any claim of objective standards seriously, because there are none that make any sense. All you can really do is admit that it is a good idea to be very careful, and that's no kind of guideline at all. The statute under question was a Louisiana law that makes the rape of a child under 12 a capital offense. It's been on the books for thirteen years or so, and so far only two child-rapers have been voted the big prize, but since the standard for evaluating the constitutionality of a punishment under the Eighth Amendment is whether the sentence is proportional to the offense, coupling a strict liability crime (sex with someone under 12, whether the offender knows the victim's age or not) with the most severe punishment available presents something of a problem with respect to proportionality. There is an obvious solution, but the Supreme Court is not likely to say that capital punishment is a sick and degraded practice. As a result, we are likely to see a bit of tortured jurisprudence coming out of the actual case, Kennedy v. Louisiana. Watch for it.

I like lists, and I thought the list of states that have capital child rape statutes was interesting: Texas (of course), Oklahoma (big Texas copycats), Louisiana, (apparently it is something of a regional issue), South Carolina (why don't they just adopt the Saudi Arabian Criminal Code and be done with it?), Montana (help me out with a joke in the Comments if you have one) and one other that I can't recall at the moment. Florida had one, but its supreme court struck it down. Nice work, when the Florida Supreme Court says a capital punishment statute is too much- you don't see that much.

I put AI on the Netflix queue because LCA and A were going out of town, and I though it would be funny to have a movie about robots arrive so I could listen to them complain. I complain when they get movies that don't have robots, so this would be perfect. As I predicted, when the three disks I'd ordered that week arrived LCA was on the money: "You got something stupid that nobody wants to see; a movie in black and white; and AI!" she declaimed crossly. She stormed out of the room. It was most satisfying. Unfortunately A did not go out of town, and the DVD hung around until we watched it last night. The joke, it seems, was on me.

Although everything except the teddy bear was creepy (here's one-- in two weeks Haley Joel Osment will be 20) it seems to me that a point that was missed in the reviews I read was how the movie is really about the narcissism of being a parent. It is not a theme that really appears in the source story, Super-Toys Last All Summer Long , so I suppose it is something Spielberg added, along with the happy ending. The Kubrick stuff sticks out all over the movie, but it is unmistakably a Spielberg picture.

As we pulled in front of our house last night we saw Southtowns congressman Brian Higgins drive by in a big ol' SUV. "Now we know what his energy policy is," A. said.

Jonah Keri is doing a series on failed dynasties. His piece on the '86 Mets captures exactly what is was like to be in the stands from '83 on, watching as it came together, then watching as it came apart. Those Mets were so good that the pieces that were traded away went on to bring championships for a lot of other clubs: Rick Aguilera, Lenny Dykstra, David Cone (acquired in '87. Ron Darling said, "David Cone came out of Kansas City like George Michael came out of Wham!"). For me it was Juan Samuel (for Dykstra and and Roger McDowell! Arrggh!) that really signaled that the club had lost its way, but Bret Saberhagen was also a sign-- how could they?

Alan Bara says it could happen for the Metropolitans this year. Maybe, although I think the club looks a little too old.

The founder of Popeyes, my favorite fast food chain has died. Popeyes red beans and rice are a wonderful thing, and unlike a lot of fast food the portion is exactly right. Come to find out that he named the restaurant for Popeye Doyle, the hero of "The French Connection." My brother always said it was named after the Faulkner character.

Here's a good example of why John Kerry is useless. Four years ago it was widely reported that he had reached out to John McCain as a potential running mate. the story appears to be true-- even McCain says he was approached, but he now denies that he was interested. The NYTimes now reports that, "Mr. Kerry declined last week to discuss his conversations with Mr. McCain, but three former Kerry strategists said that Mr. McCain had not immediately dismissed the notion of sharing the Democratic ticket. “McCain did not flat-out say no, regardless of what he’s saying now,” said one strategist who asked not to be named. “He was interested in this discussion.”

Some straight talk, from someone, would seem to be in order here, but Kerry refuses. Part of this is the culture of the Senate, and part of it may well be attributable to personal friendship between the two men, but it seems to me that Kerry has now made himself complicit in the myth of John McCain. Since persona seems to be all that McCain has going, Kerry might just as as well go out and stump for him. Kerry's judgment is questionable on the basis of the proposal itself, (something that McCain seems to acknowledge), but we are entitled to know, I think. Is the Straight Talker giving us the goods? If McCain would come out and say it-- "I felt ill-used by the Bush wing of the Republican Party, and I respect John Kerry. The offer was tempting, but I decided to wait and run on my own," then I'd say he really is the no-bullshit guy he's supposed to be. For Kerry it is a little more difficult. He has endorsed Obama, but the fact that he made the offer to McCain means that he reckoned McCain was qualified for the job. Once again his nuanced mind has painted him into a corner.

You know what might be useful? I propose that the media start reporting the total number of casualties in Iraq, not just the number of US military personnel killed. I realize that there are epidemiological issues presented by this, and I certainly realize that the number of US casualties is a horrifying number, but it is well past time for us to be candid about the cost in lives that this obscene war has incurred.

And while we are on the subject, what exactly does Dick Cheney mean when he says he regrets every US casualty? The remark is not in quotes, so we can't be sure exactly what he said-- did he mean that he regrets only US casualties? Plausible, but perhaps not true. Does he mean that he is deeply, profoundly sorry, and lies awake nights thinking about the lives that have been squandered on a folly that his mendacity perpetrated? Probably not. Did he even say "regret"? Possibly, but not in any way that contained the meaning of the word as ordinary people use it and understand it.

The thing that I am afraid many Americans fail to realize about this horrible adventure is that it has marked each of us, as individuals, as being like Dick Cheney in the eyes of much of the rest of the world. We are all viewed as personally responsible for this crime, and our country's ability to be a moral force-- the idea that the United States stands for something positive in human history-- has been profoundly compromised. We have become the thing that Harold Pinter described in his Nobel acceptance speech, and until we do something to start making amends that's how it is going to be. The United States enjoyed the prosperity that it did was a function of the fact that people in the larger world saw our country as a place where opportunity was encouraged-- and in our finer moments we encouraged opportunity in other places. If you want to know why the dollar is being supplanted by the euro as the reserve currency of choice you need only consider the moral example that Europe is presenting to the world, and contrast it with what we look like. We have squandered the thing that set us apart-- the first nation founded on a set of profound, humanistic philosophical principles has become a perpetrator of atrocities whose leadership is without scruple. We were a nation founded on words and laws, and now the words we use-- even mild words, like "regret"-- mean absolutely nothing. How can you do business with someone whose words mean nothing? Contracts are words; the laws that enforce contracts are words. If we say that we forbid "cruel and unusual punishment", or require "due process" but fail to live up to those words who should trust us on anything else?

American exceptionalism has moved into a new realm in our present incarnation, and it is past time to start doing something about that. A good start would be to start being honest with the rest of the world about what is happening in Iraq, and a good way to start doing that would be to provide an honest count.

I like the fact that Obama invoked my favorite fictional lawyer in his speech on race. Gavin Stevens is a complicated man. He's been out of Yoknapatawpha County, and is frequently scorned by its denizens, but he is an honorable cat, dependable, and forthright. He is an excellent lawyer, it should go without saying, but he resembles Puddin'head Wilson, a colleague at the Bar in that neither receives the respect their intelligence and integrity should have earned them. Stevens stays in Yoknapatawpha County because he is a romantic, and because he wants to see what will happen next, I think.

A couple of weeks ago LCA and I scoured the shoe stores of WNY looking for a pair of red Chuck Taylors. I forget when I bought my pair-- it must have been sometime in the late 80's. Even then they were not really sports shoes. You'd cripple yourself playing hoops wearing them. They were a hipster statement-- the shoes the black suited members of Blondie wore on the back cover of "Parallel Lines". They'd been in the attic forever when EGA dug them out roughly 8 years ago-- they were still a hipster statement, and if they were a bit tattered after she was done with them, so much the better from LCA's perspective. In the end we had to go online, and she got a slightly different color, but they are nevertheless a completely cool pair of kicks. There must be some sort of statute of limitations on how old you can be to carry off the look, because I know I couldn't. There is a reason my pair was in the attic, after all. If I'd tried to sport a pair of Cons much past 30 it would have looked like a Halloween costume. No irony would be conveyed-- it would just look like I was trying too hard. Nike has had a line of faux vintage shoes out for about a year now. I owned some of them when they were the rutting edge in running shoe technology, but that's not an argument for getting a pair-- they are too obviously intended for the boho crowd. On the other hand, I've been thinking about a pair of addias Gazelles for a while now. I haven't been able to pull the trigger yet, but I think I could get away with it. The shoe I really want doesn't seem to exist, and maybe never existed, although I could swear I saw them. Back when Asics was Tiger they had a shoe that was similar to the Gazelle. Suede uppers, rounded toe, they were gold with black trim, and they looked might sharp. I have been poking around in the stores on lower Broadway and online, but have been unable to find them, which means that I will probably continue to simply go with the shoes that have been retired from running, rotating them down to "okay to paint in" and then, to "what the hell, wear them rafting, maybe they'll get lost."

The morning jock on WFUV said something inexcusably stupid, so I switched over to WKCR and caught Phil Schaap's "Birdflight". I guess Schaap makes some people crazy, but I think his show is cool-- a good example of the sort of thing public radio used to do, and now really never does. At the moment he is playing all of Charlie Parker's recordings in chronological order, and if the program I heard is any sort of indication he'll be a while at it. This was the second show in the series, and he managed to get up to Parker's fourth official release. Lucky me, that happens to be "Cherokee", the Jay McShann side that announced that something new was happening. Schaap talked about the song for 16 minutes-- he kept announcing the time-- going into detail about when an by whom it was first recorded, the Basie Band recording that preceeded the McShann version ("On which Lester Young-- perhaps inadvertently-- invented the theme from "Bonanza," Schaap said, and sure enough, there it was). After all that, he played the records-- the Ray Noble version, the Basie Band's extended version, and then the Parker record. Bird's solo is about a third of the way in, and even today it sounds like it came from Mars. Completely amazing-- in the middle of this pop jazz number all of a sudden jazz that sounds like the way jazz sounds in the 21st Century came streaming out. Schaap talked a bit about who else was on the date-- Buffalo's own Al Tinney was the piano player, present at the creation.

Maybe 16 minutes of discography is a lot-- you would never hear it on WBFO, for example, but Schaap really knows his stuff, and he owns records that you will never hear elsewhere. It was a pretty great morning on the radio as far as I was concerned.

Slate is marking the 5th Anniversary of the Iraq War by having columnists write pieces on the theme "How Did I Get It Wrong". Count on it, nobody is going to say, "It was a stupid idea. I'm sorry." Nobody will say, "I now realize that we had no business invading a sovereign nation with no provocation. It was a violation of international law, and we should never have fallen for the overheated and mendacious rhetoric." None of these cats are going to say, "The ruse was transparent, and I should have seen through it." You won't see them writing "Of course I should have known that Iraq is a complex place which we understood poorly. If I'd considered it, I'd have realized that invasions like this are, as a matter of historical record, unlikely to be successful, even if we had planned on being far more brutal. Oh, and we have been a lot more brutal than I'd thought, and I am sorry for that, too."

Instead they will all say things like, "Saddam was bad." "Bush's plan was badly executed." "I wasn't wrong-- we are totally winning". There will be some people who will buy it, too, which is why John McCain has a puncher's chance in November.

One more Spitzer post, and then we'll move on. I haven't heard anyone say anything about it, but isn't interesting to think about the arc of this story? It was such a stunner-- hard-nosed prosecutor brought down by his own hypocrisy-- that I'm not sure anyone has thought about it much, but consider this: Spitzer wasn't charged with anything when the Times released the story. He may never be charged with anything-- the Mann Act stuff is sleazy, but a slam dunk. If they were going to charge him, they could have done it. The "structuring" charge is interesting, and I don't think there is enough out there to say if it would stick-- Spitzer apparently used his own dough to pay for hookers, and if he was careless about the way he spent his money, that's still not usually the sort of thing the US Attorney for the Southern District gets worked up about, or you'd hear about a lot of guys in trouble for cashing two $5,000 buck checks a week. There might be a conspiracy to commit tax fraud or money laundering charge in there, but if there were, what was holding up the indictment? The Feds obviously had what they needed to indict, and they didn't, or hadn't to that point.

According to this piece from the New York Observer on the Friday before the story broke Metro desk reporter William Rashbaum got a tip that an individual named in a criminal complaint that had been unsealed two days earlier was a “New York official”. The Times' reporters ran the tip down over the weekend, then ran the story that Monday, releasing it on the web first.

Now, here's the thing. Spitzer isn't identified in the Complaint-- there is nothing in the Complaint to identify Client 9. The fact that Client 9 was a “New York official,” is information that could only have been within the knowledge of a few people. Maybe the members of the grand jury knew it-- but probably not. Maybe the Magistrate Judge-- Judge Ellis-- knew, but that also is unlikely. That leaves the FBI Agents who did the investigation-- we know they knew-- the US Attorney for the Southern District, (who also knew) and the Assistant US Attorneys who worked up the case. Disclosing grand jury information is a big deal. Grand Jurors don't do it, and people in the US Attorney's office know damn well that it is illegal to do so. And look at the timing of it: the tipster gave Rashbaum a weekend to do the necessary legwork-- lots of time, and ideally timed for an early week release.

In other words, it looks to me as though someone in the Bush DOJ-- specifically in the office of the United States Attorney for the Southern District of New York-- leaked grand jury information to a reporter for political purposes. Although the Complaint doesn't say anything about the identity of Client 9, it if full of what and where. A few phone calls, a look at the published schedules of a dozen or so New Yok officials and you are right on it. In fact, there is nothing in the Observer's account that suggests that the tip didn't include Spitzer's identification, which would have made the whole investigative process more a matter of verifying that he was in DC on the date in question. The leaker had to have figured that the story would break by Monday or Tuesday-- maybe Wednesday, latest. With no weekend to cool things off, and no notable Presidential primaries that week or other big stories to deflect the full glare of the media the Spitzer story would-- and did-- dominate the news cycle.

When you think about it that way, it starts to look a little like a coup, doesn't it? And wasn't that the effect? The leaker brought down a government.

So who was it? You can't fault the press-- they had a tip, they ran it to ground, and they reported on it promptly. That's actually what the press is supposed to do-- and what the Times, in particular, has rightly been criticized for not doing in the past. The Times did its job this time, and what a pity that the liberal media only ever seems to get it right when its a Democrat caught out. Who was the media savvy source that whispered in William Rashbaum's ear? If I were the US Attorney for the Southern District I'd want to know. As it is, I hope the US Attorney for the Southern District of New York wants to know, and I'd like to hear from him about what sorts of inquiries he is undertaking to find out-- as well as what he learns. Spitzer is certainly a heel and a hypocrite, but that's nothing new. He demonstrated how disliked he was, and that suggests that there are quite a few people who wouldn't have minded seeing him brought down, and in politics that's to be expected, but our process contemplates doing so in the daylight. A carefully timed, illegal release of grand jury information calculated to bring down a government is a different matter.

So how about it, Michael J. Garcia? Who knew the identity of Client 9 on March 7, 2008, and who told William Rashbaum?

I want a bumper sticker that says, "Don't Blame Me, I Voted for Suozzi". I am of half a mind to haul my Suozzi lawn sign out of the basement, actually. A. says, "I am trying not to see this as an example of why change is impossible," and that more or less captures my mood about the whole mess. When Spitzer picked David Patterson as his running mate I was not pleased (although, oddly, I appear to have been silent on the subject). Patterson seemed then, and seems now, like the sort of insider figure that has brought New York to the state of dysfunction it presently enjoys. His credentials are dubious: he never passed the bar exam, but his official bio says he was a Queens County Assistant District Attorney. That doesn't sit well with me, although the thing that I dislike most is that he is part of the New York Legislature culture-- and a member of the State Senate, which is arguably the worst of the two chambers. Spitzer wasn't getting a lot of traction with his reform proposals, and was mired in some ugly stuff with Senate Majority Leader Bruno, but his organization was quietly pulling control of the Senate away from Bruno and the Republican Party. I'm afraid that momentum may be lost, and that we are going to sink back into business as usual, or worse.

I was awoken yesterday to a news report about a local judge who was implicated in a prostitution investigation. My mind raced, but it turned out to be a judge I'd never met.

I've never met Client 9, either, but I had been optimistic about Eliot Spitzer. There isn't going to be a piece of gubernatorial china left in the set is my guess-- a discrete affair is one thing, but a taste for $5,000 hookers is another all together. What kind of governor will David Patterson make? I have a feeling we're about to find out.

I thought this kind of thing only went on in New Jersey politics. Maybe Eliot and Judge Tills can get an apartment together.

Here's my question: how come Tim Russert doesn't ask questions like this? If they'd let the kids ask follow-up questions, we'd really be getting somewhere.

What is kind of galling, actually, is that CNN plays this story for cute laughs, rather than for what it is. McCain totally ducks the question about age, and although I suppose he should get some sort of credit for being candid about his bigotry, he isn't actually. "I appreciate your views," in this context means the same thing as, "With all due respect."

And what about this? "I was the only one of the major Republican candidates who adamantly, vociferously opposed the [former Defense Secretary Donald] Rumsfeld strategy and fought hard for the strategy [of using more troops] that we're employing today," he told reporters. "The others thought it was fine. That's because they don't have the knowledge or background and experience that I do on issues of national security. That's a clear indication of it." First of all, I have never been exactly clear on what being a prisoner of war has to do with foreign policy expertise. Did they have a library there where he could study? Beyond that, is he seriously arguing that things are swell in Iraq? Because that is not the morning news I'm hearing.

Seriously, is McCain really going to run on a platform that amounts to four more years of the same? Because I am loving that strategy.

I was just thinking about "The Capeman", actually. Derek Walcott, with whom Paul Simon collaborated on the doomed Broadway project is coming to Buffalo as part of Just Buffalo's Babel series, and I was thinking about at least checking my calendar for it. Now, come to find out BAM is featuring a Simon retrospective, and "Capeman" leads it off.

In the Voice article linked to above Mike Powell notes:

"Simon once said he thought "Graceland" was his best song. It probably is. When he first heard South African music, he was floored; when he found out where it was from, he remembers wishing it had been from anywhere else. "Graceland" tells the story of a divorced man dragging his son on a journey of self-discovery through the slave-state home of America's most overexposed pop figure. By setting that vision to the bounce of an oppressed people, Simon was able to transpose his complicated passion for South African music into a story about muted redemption. In 1978's "The Big Country," the Talking Heads weighed the same subjects—the urban perception of purity in the Middle-western and Southern states, the allure of their simplicity—but, tellingly, placed its narrator on an airplane. And while David Byrne's characters might never sound as pitiable as Simon's, Simon's would never be so disengaged. In his career's weaker moments—see the bulk of The Capeman—he tries very hard to appear weighed down by the plight and place of his characters, but in his best—"Graceland"—he sounds genuinely upset. For someone so cherished, it's remarkable how little Paul Simon actually smiles."

I think that gets it just about right-- Simon is mostly about the sort of pain that comes from minor slights and major personal catastrophes. Everything wounds him-- but I'd say that Powell misses a bet when he fails to note that Simon is capable of optimism in one form. The man writes great lullabies. As melancholy as his trip with his son "to the cradle of the civil war" might have been, like Holden Caulfield Paul Simon wants to keep kids safe from the world's hurts-- and consider the personal growth represented over the progression from "America"-- an earlier, similar road trip ballad-- to "Graceland". I don't know what ever happened to "Kathy" in the former-- Simon confides to her that he's lost,empty and aching although he knows she is asleep. In contrast, his nine-year old companion in the latter, "the child of my first marriage" may or may not be awake, but it doesn't matter: Simon has "reason to believe we both will be received in Graceland". As a New Yorker he is cosmopolitan in his own environment, and a fish out of water outside of it-- but he has acquired some faith along the way. Some of that faith, it seems to me comes from knowing that even though romantic relationships can fail, the relationship he has with the child of his first marriage will be an enduring, lifelong one.

I'm doing some Dylanology at the moment, and one interesting contrast between the two is that Simon's releases do not have the same out-of-control, throw it against the wall and see what sticks quality that a good deal of Dylan's work does. When Paul Simon puts out a record, even if it is something as blah as "One Trick Pony"-- or as catastrophic a flop as "The Capeman", it represents the full flowering of his creative effort at that moment. Dylan-- also a quintessential New Yorker in many ways-- is prepared to be more experimental. Even so, even though the higher gloss on Simon's work sometimes seems to diminish it, it is a body of work that puts him in the first rank. I wish I was able to go to the BAM thing-- an evening like that could put some of the surprise back in some of those songs, in the same way that Dylan tries to do when he reworks his catalogue in his live shows.

I am having a real hard time getting my mind around the notion that somehow Hillary Clinton is Fritz Mondale and Barrak Obama is Gary Hart, but that seems to be how it is shaking out. It is interesting that HRC continues to confound conventional polling methodology, and it is extremely interesting that both Clinton and Obama seem to attract highly motivated voters. I still see this as Obama's race to lose, but HRC is making a case. Pennsylvania voters remember: She Voted For The War. When the call came it wasn't at 3AM, it was on the floor of the Senate.

What's on Bruce Springsteen's iPod? And also a pretty good interview with The Boss. (Via Bill Simmons'column.)

"I always look at my work as trying to measure the distance between American promise and American reality," Springsteen says. It is an interesting statement- certainly a very self-aware thing for a guitar player to say, and as I think about it, it seems true. What else is "Lost in the Flood" about? Or "Jungleland"? Sure, they are romances, but in the most expansive sense of that word, I'd say. It is interesting that he feels like he was always writing material that he'd be able to sing when he was older-- Mick Jagger famously remarked that he didn't want to be singing "Satisfaction" when he was 45, and, of course, Pete Townsend was at pains to announce to the world "Hope I die before I get old". "I was 24 when I wrote 'We ain't that young anymore'" Springsteen says, and suddenly the ageism that has been a rock'n'roll dilemma doesn't seem to be a problem, or even a contradiction.

I have given up resisting Bill Simmons. He can call himself The Sports Guy, he can be a big Boston fan, he can write columns that are five times longer than they need to be-- at the end of the day he is plain funny, and I can forgive a lot if you are funny. Plus his column about the anguish of Sonics fans was a true piece of sports writing as a public service.