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The Rules Matter…

Director Steven Spielberg’s latest offering – Bridge of Spies – works on several levels as his best films tend to. In fact, it may be one of his very best films.

Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan

Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan

The movie is a classic big screen thriller with adequate action and suspense. It’s a finely tuned period piece (mid-century modern) complete with old cars, vintage billboards, and “duck and cover” filmstrips.

Bridge of Spies is also an actor’s movie with superb performances by Tom Hanks and Mark Rylance, perhaps the world’s most acclaimed stage actor, and a talent that will be new to many movie goers.

And since this is Spielberg, the film is also an American history lesson.

When the Cold War Was Really Cold…

Hanks, who seems to hit his stride when working with Spielberg, plays New York attorney, James B. Donovan, who improbably becomes the key player in arranging a celebrated Cold War prisoner swap between the United States and the Soviet Union. The action is set at the end of the Eisenhower Administration and continues on into the Kennedy years – days of the Berlin Wall, the Bay of Pigs, the Cuban Missile Crisis, and spy versus spy.

The key figures in the prisoner swap – again all true – were the young American Air Force lieutenant Francis Gary Powers, who is appropriated to fly spy planes for the CIA, and the notorious Soviet spy, Colonel Rudolf Abel.

Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962

Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962

Powers became a Soviet prisoner in May 1960 when his U-2 spy plane was shot down in the Ural Mountain region of the Soviet Union during a photography run. Powers survived the crash – great scene in the movie – and was captured by the KGB.

The Eisenhower Administration originally tried to pass off the incident as a wayward weather aircraft, but the Soviets produced wreckage of the super-secret U-2 and Soviet Premier Nikita Khrushchev reaped an international propaganda windfall. A summit meeting in Berlin was cancelled and efforts to improve U.S.-Soviet relations were temporarily derailed. It was a major international incident that also had the human dimension of a young American with a head full of secrets about U.S. spy activities sitting in a Russian jail.

Earlier, in 1957, after a long string of events that read, appropriately enough, like something out of John Le Carre, the FBI and Immigration and Naturalization Service identified Colonel Abel as a Soviet spy who had been operating in the United States for some time. Abel was arrested in Brooklyn, tried, and convicted of espionage. The New York lawyer, Donovan, was appointed by the federal court in New York to defend him.

The film mangles some of the timeline and a few things are invented out of whole cloth – this is Hollywood after all – but the real power of the story and its great relevance today is in the courtroom scenes where Abel is first convicted and then loses an appeal before the U.S. Supreme Court.

After seeing and completely enjoying the film, I got to wondering what really happened in the U.S. justice system during the height of the Cold War when the government tried a man thought to be a Soviet spy.

Does a Soviet Spy Deserve Due Process…

The film understandably compresses a good deal of the story, which played out over several years, but makes some powerful and important points in the telling.

A basic question is raised early on when attorney Donovan (played by Hanks) has to confront the dilemma of an upstanding attorney, a pillar of the New York Bar, signing on to do his best to defend a Russian spy. What are the implications for his career, his law firm, his family? I immediately thought about the private attorneys who continue to represent Guantanamo detained terror suspects.

The real Rudolf Abel

The real Rudolf Abel

The film makes us confront whether it is merely enough to give Abel a defense that goes through the motions of due process or whether he deserves a no-holds-barred defense, including appeals on grounds that his hotel room and apartment were improperly searched.

At one point a CIA operative shadows Donovan in order to question him about what his client has been saying. Donovan, in one of the film’s best moments, tells the CIA fellow that he won’t – indeed can’t – talk about what his client is telling him since it is protected by attorney-client privilege. There are rules, Donovan says, most importantly the Constitution that make our system different than the system that is detaining Gary Powers.

Abel’s case, both in the film and real life, eventually reaches the Supreme Court over the question of the lack of a proper warrant that specifically authorizes a search the defendant’s rooms. Give Spielberg credit, he even gets the Supreme Court courtroom correct. Abel’s case was argued, actually twice, in 1959 and the courtroom has since been remodeled.

The case turned on a complex question about whether a warrant for an “administrative arrest” – Abel was actually arrested by the immigration service after being detained and questioned by the FBI – allowed the subsequent FBI search of his rooms. The celebrated Justice Felix Frankfurter wrote the rather technical 5-4-majority opinion upholding the legality of the search and Abel’s conviction stood.

This is a notorious case, with a notorious defendant…

As is often the case, the dissents in such cases make for better reading and offer more insight into the workings of our justice system. Justice William O. Douglas wrote one of the dissents in the Abel case and Justice William J. Brennan another.

Mr.  Justice Douglas

Mr. Justice Douglas

“Cases of notorious criminals—like cases of small, miserable ones—are apt to make bad law,” Douglas wrote in his dissent, which was joined by Justice Hugo Black.

“When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. That practice, in certain periods of our history and in certain courts, has lowered our standards of law administration. The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement. The present decision is an excellent example.”

Douglas was saying sure this Abel is a Soviet spy – a notorious criminal – but the rules apply to him just as they apply to “small, miserable” law breakers.

“If the F.B.I. agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized,’” Douglas wrote. “How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department! The administrative officer can give a warrant good for unlimited search. No more showing of probable cause to a magistrate! No more limitations on what may be searched and when!”

Brennan was just as pointed: “This is a notorious case, with a notorious defendant. Yet we must take care to enforce the Constitution without regard to the nature of the crime or the nature of the criminal. The Fourth Amendment protects ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ This right is a basic one of all the people, without exception…”

Real American Exceptionalism…

The court case and the film also make the fundamental point that Abel, not a U.S. citizen, still enjoyed the full protections of the country’s justice system, a point worth pondering as the terror suspects sit year after year in Cuba.

President Kennedy with James B. Donovan who also negotiated return of Bay of Pigs captives

President Kennedy with James B. Donovan who also negotiated the return of Bay of Pigs captives

Rudolf Abel languished in U.S. prisons until early 1962 when the Donovan-brokered exchange took place on a bridge dividing East and West Berlin. That bridge gives the film its title. The New York attorney was publicly acknowledge by the Kennedy Administration as having helped make the arrangements.

The negotiations over the swap are some of the best moments of the film and, intentionally or not, Spielberg shows that the New York insurance lawyer who became an Cold War negotiator turned out to be a lot better high stakes deal maker than his CIA minders.

The film is already getting some Oscar buzz – it is certainly worthy – if only for its deft storytelling and the great performances. Mark Rylance’s portrayal of Rudolf Abel is nothing short of brilliant. And the script by the Cohen Brothers is first rate. A typical Cohen touch is the reoccurrence of Abel’s response when his lawyer asks him if he’s worried or afraid: “Would it help?” That has become my new mantra.

As good as the movie is as entertainment here’s hoping a few enterprising high school (or college) teachers use the film in class to make the more important points about our justice system and our history.

The hero in the film is, of course, attorney Donovan, a man mostly lost to history whose role in Abel’s trial and in the spy swap may now finally enjoy some long overdue recognition. Donovan, who died in 1970, spent years working on the Russian spy’s defense and appeals and donated half his $10,000 fee to Fordham University and split the rest between Harvard and Columbia. Setting aside the Abel case and the spy swap, the rest of Donovan’s career – naval officer, Nuremberg prosecutor, New York board of education member, U.S. Senate candidate – was truly incredible. A great American story.

Even though he lost at every level Donovan said after the Supreme Court ruling, “The very fact that Abel has been receiving due process of law in the United States is far more significant, both here and behind the Iron Curtain, than the particular outcome of the case.”

That one sentence says a lot about why we won the Cold War.


Defining Moments…

Truly defining moments are rare in our politics. They come around perhaps once a decade or so, but when they do occur they often signal a massive change in public attitudes, even to the point of taking a contentious issue off the political table or redirecting the political trajectory of the country.

A defining moment...

A defining moment…

The Supreme Court’s Brown v. Board of Education decision in 1954 signaling the beginning of the end of segregated public schools was such a defining moment even as many Americans continued to vigorously resist the direction set by the Court. Even opponents of the decision were hard pressed to deny that a political Rubicon had been crossed. “Separate but equal,” a legal standard in effect for more than half a century, would no longer pass Constitutional muster and the legal and moral authority of the Supreme Court was now behind that position.

Lyndon Johnson signing the Civil Rights Act a decade later would qualify as the same kind of defining moment.

More and more, Ronald Reagan’s election in 1980 is viewed as a defining moment in American politics. Conservative principles soared with Reagan’s election, Republicans captured the Senate and Reagan and subsequent conservative presidents were able to cement a conservative majority on the Supreme Court.

Defining Changes in American Politics…

After each defining moment, our politics changed. Support or opposition to the Brown decision or how a politician voted on the Civil Rights Act would now become the measure of where a politician stood on civil rights. Those on the losing side – Barry Goldwater for instance, would forever carry the distinction of opposing civil rights.

ReaganReagan’s election ushered in a long period of reassessment of the size and scope of the federal government and helped shift the allegiance of many conservative white voters from the Democratic Party of Franklin Roosevelt to a Republican Party defined by the Gipper. We still feel the political pull and tug of all these moments.

The deeply engrained features of our political system – checks and balances, separation of powers, federal-state relations and intense partisanship – limit the opportunity for truly defining moments. But last week’s landmark Supreme Court decisions effectively settling two of the most contentious issues in current American life – the fate of the Affordable Care Act and the future of same sex marriage – show that the Court, perhaps more than legislators or presidents, now creates our defining moments.

Crispness of decision and clarity of direction rarely happen in our politics, but when it does occur it presents an equally rare moment when politicians, if they choose, can re-calibrate and re-position. This is such a moment.

The smart GOP presidential candidates will gradually begin to adjust their positions and rhetoric on Obamacare and same sex marriage knowing that, as one GOP consultant said after the same sex marriage ruling, “Our nominee can’t have serrated edges. Like it or not, any effort to create moral or social order will be seen as rigid and judgmental… Grace and winsomeness are the ingredients for success in a world where cultural issues are at the fore.”

Sharpening the serrated edges…

But the shrill anti-gay marriage, cultural warrior rhetoric of a Mike Huckabee or a Ted Cruz may in the near term do more to define the Republican Party for voters, particularly younger voters, than any subtle shifting of position and language coming from a Jeb Bush or a Chris Christie.

Texas Senator Ted Cruz

Texas Senator Ted Cruz

Cruz, a former Supreme Court clerk and an Ivy League educated lawyer should know better, but he’s saying in the wake of the same sex marriage decision that the Court’s ruling is not binding on anyone not specifically involved in the case before the Court. It’s a ridiculous and incorrect argument made, one assumes, simply to seek favor with those most opposed to the landmark decision. The same can be said for the phony argument that legalizing same sex marriage constitutes an assault on religious freedom. It won’t fly because it isn’t true.

Cruz’s approach is simply sharpening those “serrated edges” that can only cut the next GOP candidate. Cruz, Huckabee and a few of the other GOP pretenders obviously are unwilling or incapable of moving on from a defining moment, which just postpones the moment when the Republican Party begins to appeal beyond its Tea Party base.

The Texas senator notwithstanding, one or more of the other candidates can re-define themselves – if they choose – by deciding to appeal to the majority of Americans who support what the Supreme Court said about marriage and health care rather than continuing to cater to those Republican primary voters who want to continue the fight over issues that have now been settled. The one who does opt to re-define will be taking a calculated political risk, but it will be the kind of risk that may serve to separate the risk taker from a crowded field that increasingly will be seen by many voters as living in the past, or worse living in an alternative universe.

You can bet that the more skillful candidates in the GOP field – Bush, Christie and soon Ohio Governor John Kasich among them – are trying out this strategy and its talking points in front of a mirror somewhere. If they are not testing the talking points they’re preparing to lose another election next year.

Idaho, a state whose politics I know best, is also at such a crossroads. The overwhelmingly Republican legislature and the very conservative governor have vehemently opposed same sex marriage (and spent thousand of dollars to defend what we now know was an indefensible position) and have also refused to amend the state’s human rights statute to provide basic anti-discrimination protection to gay, lesbian and transgender citizens. Now that the United States Supreme Court has settled the same sex marriage issue, in effect nullifying Idaho’s Constitutional prohibition, the issues are clearer than ever.

All that is left is bigotry…

Richard Posner, a conservative U.S. Court of Appeals judge appointed by Reagan whose also teaches at the University of Chicago law school, has written one of the most insightful critiques of the various dissents in the recent same sex marriage case. Stripping away all the political smoke about protecting religious freedom, Posner writes, reveals that the only grounds for opposing same sex marriage, and I would add anti-discrimination protections for the LGBT community, is simply “bigotry.” Posner, pulling no punches and refreshingly so for a judge, also called Chief Justice John Roberts’ same sex marriage dissent “heartless.”

Judge Posner photo by Hugh Williams

Judge Posner photo by Hugh Williams

“I say that gratuitous interference in other people’s lives is bigotry,” Judge Posner wrote in Slate. “The fact that it is often religiously motivated does not make it less so. The United States is not a theocracy, and religious disapproval of harmless practices is not a proper basis for prohibiting such practices, especially if the practices are highly valued by their practitioners. Gay couples and the children (mostly straight) that they adopt (or that one of them may have given birth to and the other adopts) derive substantial benefits, both economic and psychological, from marriage. Efforts to deny them those benefits by forbidding same-sex marriage confer no offsetting social benefits—in fact no offsetting benefits at all beyond gratifying feelings of hostility toward gays and lesbians, feelings that feed such assertions as that heterosexual marriage is ‘degraded’ by allowing same-sex couples to “annex” the word marriage to their cohabitation.”

What possible reason can there be for Idaho legislators or those in a number of other states to continue to resist basic human and civil rights protections for gay, lesbian, bi-sexual and transgender citizens of their states? The only grounds, as Judge Posner says, is nasty and enduring bigotry – not a winning political position.

The value for a politician in seizing the opportunities presented by a defining political moment can be clearly seen in the actions of South Carolina Governor Nikki Haley regarding the future of the Confederate flag.

South Carolina Gov. Nikki Haley along with Sen. Lindsey Graham (R-SC) (R) and other  lawmakers and activists delivers a statement to the media asking that the Confederate flag be removed from the state capitol grounds.(Photo by Joe Raedle/Getty Images)

South Carolina Gov. Nikki Haley along with Sen. Lindsey Graham (R-SC) (R) and other lawmakers and activists delivers a statement to the media asking that the Confederate flag be removed from the state capitol grounds.(Photo by Joe Raedle/Getty Images)

Washington Post profile of Haley proclaims that the governor made the move from “Tea Party star to a leader of the New South” when in the wake of the horrific murders of nine black Americans in a Charleston church she called for removal of the Confederate flag from the state capitol grounds.

The Post may overstate Haley’s transformation just a bit, but when the governor is quoted as saying, “This flag didn’t cause those nine murders, but the murderer used this flag with him as hate to do it…And this isn’t an issue of mental illness, this is an issue of hate,” she is certainly leading public opinion – transforming herself and the flag issue – at a moment of stark clarity about what should happen with the central symbol of white supremacy and bigotry.

The difficult things to do…

The most difficult thing to do in politics is to say “no” to your friends. The second most difficult thing is to take a risk stepping away from a divisive issue that has moved on. As a candidate you can chose to point a new direction or you can stir the disaffected by continuing to turn over the nasty residue of anger and defeat.

All the evidence is in: Americans increasingly feel comfortable with same sex marriage, young people overwhelmingly so, and many Republicans – three hundred prominent Republicans appealed to the Court to legalize gay marriage – are saying that it’s just time to acknowledge that reality. Republicans have spent much of the last six years doing everything possible to dismantle or destroy Obamacare without proposing any real alternative, while the polls tell us more and more Americans support the law. Now the question becomes whether one of the GOP candidates can lead the party out of its dismal swamp by risking a break with its most reactionary members or whether for one more election Republicans will keep looking back, while the times, the politics and the country move on.

Imagine one of the Republican candidates simply saying something like this on the marriage issue: “You know I understand the feelings of many of my friends on this issue, but I have also heard and understood what the highest court in the land and most of my young friends have to say. They’re saying that a same sex couple’s marriage just isn’t a threat to me and my marriage nor is at any kind of threat to you and your marriage. The couple living next-door – gay, straight, Christian, Jew, Mormon, atheist – in no way prevents me from embracing my religious beliefs. To say that it does is playing on fear and intolerance that is not my idea of America. The American ideal is inclusion, acceptance and respect, not bigotry. Those are the values that I embrace and I hope all Americans do, as well.”

I’m not holding my breath expecting to hear such a speech, but I am hoping. A basic rule of politics after all, and this applies particularly to the Republican presidential field, is to quit digging when you find yourself in a hole.

Love, dignity, commitment, communion and grace…

David Brooks, a thinking person’s conservative, offered a variation on this “seize the moment” idea when he suggested in his New York Times column that it was time for social conservatives to recalibrate their strategy after the Supreme Court decisions.

‘I don’t expect social conservatives to change their positions on sex,” Brooks writes, “and of course fights about the definition of marriage are meant as efforts to reweave society. But the sexual revolution will not be undone anytime soon. The more practical struggle is to repair a society rendered atomized, unforgiving and inhospitable. Social conservatives are well equipped to repair this fabric, and to serve as messengers of love, dignity, commitment, communion and grace.”

That is an important and principled thought. A serious and conservative political leader could do a lot of good for the country by embracing it.



A great day for America with expansion of rights for same sex couples or a bleak day where the tyranny of five activist judges trump the political process creating a threat to democracy?

NBC photo

NBC photo

Take your pick: The profound political divides in the United States are to be found in the Supreme Court’s majority opinion granting Constitutional protection to those of the same sex who seek to marry and in the four dissenting opinions that blast that finding.

It’s dangerous to predict the historic importance of a single Supreme Court decision, but I’ll fearlessly hazard a guess that the decision on Obergefell v. Hodgesremember those names – will be remembered fifty or a hundred years from now along side Brown v. Board of Education, the historic decision that ruled “separate but equal” unconstitutional.

One major difference in the two decisions separated by sixty-one years is that Brown was decided by a unanimous Court, while Obergefell was decided by a Court profoundly divided. Chief Justice Earl Warren’s judicial leadership helped create that earlier landmark civil rights decision in 1954. Chief Justice John Robert by contrast wrote the dissent in a decision decided 5-4.

The opinion and dissents will be picked over and analyzed for years, but at first blush I am struck by two things: the Court majority’s embrace of marriage as a fundamental right guaranteed by the 14th Amendment (in the same way the Warren Court applied the Constitution to public schools) and the minority’s fierce condemnation of the Court’s overreaching by taking a divisive social and, to some, religious issue out of the hands of elected politicians.

Justice Anthony Kennedy

Justice Anthony Kennedy

Justice Anthony Kennedy – the real Chief Justice at least on this issue – wrote in the Court’s decision: “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution [here Kennedy quotes from an earlier Court decision] “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”

Kennedy was truly eloquent elsewhere in his opinion in describing the institution of marriage, but the paragraph above is the heart of his argument – certain rights in our democracy and under our Constitution simply cannot be left to the “vicissitudes” of politics. Rights are rights, Kennedy says, the Constitution guarantees those rights no matter what a legislature in Idaho or an appeals court in Texas might say.

Roberts in his dissent seemed almost unable to restrain his contempt for Kennedy’s reasoning about fundamental rights. “Understand well what this dissent is about,” Roberts wrote. “It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”

Chief Justice John Roberts

Chief Justice John Roberts

Roberts and the Court’s other dissenters argued for leaving the decision to those Idaho legislators even at the risk of creating a vast and confusing landscape of law related to one of society’s most fundamental institutions.

[You might be excused for remembering that Roberts had no reservations about having “five lawyers” overrule the overwhelming majority of the United States Congress when the Court gutted the enforcement provisions of the Voting Rights Act. Emerson’s famous line comes to mind: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines…Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day.”]

Roberts may have accomplished one thing with his passionate dissent – his opinion upholding Obamacare is suddenly off the front page. The staunch conservatives who criticized him yesterday for siding with the president on health care can now view Roberts as rehabilitated with his dissent on same sex marriage.

Justice Antonin Scalia, of course, went even farther in his dissent. “When the Fourteenth Amendment was ratified in 1868,” Scalia wrote in his dissent, “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” In other words, in Scalia’s judicial view, nothing at all has changed since Andrew Johnson sat in the White House.

And there is more that I quote at some length because, well, because Justice Scalia is a man of words and often pungent, even nasty words.

Justice Antonin Scalia

Justice Antonin Scalia

“The opinion is couched in a style that is as pretentious as its content is egotistic”, Scalia wrote. “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; [as many of his dissents have been accused of containing] it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. ‘The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.’ (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”


Remember that it was just over a decade ago that Karl Rove engineering George W. Bush’s two elections, at least in part, by embracing a strategy of placing polarizing anti-same sex marriage issues on many state ballots and endorsing a Constitutional amendment to outlaw gay marriage. Since then opinion has moved so quickly on the issue that it was perhaps inevitable that the Court would follow that opinion and codify what a solid majority of Americans now embrace. Still that political evolution makes Justice Kennedy’s decision no less historic. As President Obama correctly noted after years of incremental change; change that most of the time seems so very slow to so very many, justice can come like “a thunderbolt.”

Another fearless prediction: When the history books record the importance of Obergefell v. Hodges in 2015, the words “landmark” and “historic” will be attached. The decision will be remembered for expanding rights for a significant and deprived group of American citizens under their Constitution. Scalia’s dissent will be remembered, if at all, as an artifact of a different country and a different time and, of course, for its outrageous bombast.

Ask the nearest hippie.


America’s Great War…

The marvelous British historian David Reynolds argues in his latest book – The Long Shadow – which explores the lasting legacies of World War I, that every country has a national narrative about its “great war.”

Photo - The Telegraph

David Reynolds author of The Long Shadow. Photo, The Telegraph

For Great Britain the “great war” remains World War I, which is being commemorated right now with solemn ceremonies, television documentaries, a raft of new books and even government financed field trips by school children to France to witness first hand the trenches and cemeteries where many of a generation fought, fell and remain.

War deaths from Great Britain, including those who died from disease and injury, were more than 700,000 from 1914 to 1918. The total reaches nearly a million when the soldiers of the empire are counted. The Great War, more even that World War II, remains a searing event in modern British history and memory.

America’s Great War…

In the United States, by contrast, the Great War remains, in Reynolds’ phrase, “on the margins of American cultural memory.” Our “great war” Reynolds correctly contends – the war that never ends for Americans – is the Civil War. More than three-quarter of a million Americans died. “More than the combined American death toll in all its other conflicts from the Revolution to Korea, including both world wars.” Our great war re-wrote the Constitution, ended slavery, realigned American politics and touched, often profoundly, every family and institution in the re-united nation. It also caused the death of our greatest president and cemented decades of resentment and hatred in a sizable chunk of the population.

Confederate troops under their flag

Confederate troops under their flag

“Both the Union and the Confederacy,” the British historian writes, “claimed to be fighting for ‘freedom’ – defining it in fundamentally different ways…in retrospect the dominant American narrative has represented 1861-1865 as a crusade to free the slaves, yet the unresolved legacies of slavery rumbled through Reconstruction, Jim Crow, the Civil Rights movement, and the ‘Southern strategy’ – not even settled by the election of the country’s first black president in 2008.” That pretty well sums it up.

Yet the legacies of our “great war,” engaged afresh in the wake of the recent horrible events in South Carolina, never seem to be completely acknowledged by our political leaders. The war, many seem to believe, can be rightly treated as a cultural artifact, a historic aberration or a mere blip on the national path to the perfect Union. But the war remains with us in big ways and small, including in the rebel flag.

South Carolina Capitol

South Carolina Capitol

As symbolically and practically important as are the call by the Republican governor of South Carolina to remove the Confederate battle flag from the state capitol grounds and the moves by Walmart, Amazon and others to quit selling Confederate-themed merchandize, the war over our great war, including its meaning and importance, will continue. The battle goes on, in part, because even a century and a half after the war ended our national conflicts about race, civil rights and national and state politics are fueled by two great and hard to combat realities – myth and ignorance.

Losing the War and Winning the Legacy…

Scarlett and her "boys of the Lost Cause..."

Scarlett and her “boys of the Lost Cause…”

The South lost the Civil War, but in very important ways won the war to define the conflict. The still greatest Civil War film, for example, is Gone With the Wind, a glorious piece of Hollywood myth making that helped ensure that Scarlett O’Hara’s love for her southern home, Tara, and her determination to survive evil Yankee depredations would frame our great war as a noble “lost cause” fought to maintain a genteel Southern culture. It’s all hooey done up in hoop skirts. Myth with a southern twang.

The noble Ashley Wilkes, a cinematic stand in for Robert E. Lee or Stonewall Jackson, was a traitor who took up arms against his country. Scarlett, the determined southern belle, aided and abetted the rebellion in order to maintain her piece of the South’s slave dependent economy. One commentator described Scarlett as the “founding Mother of the Me Generation,” unwilling to bother her pretty little head about anything beyond her own self-interest. An enduring line from the film, the Best Picture of 1939, is Scarlett’s dismissive line: “I’ll think about that tomorrow.” So it goes with our great war and its meaning.

As laudable as her actions are in calling for the flag to come down in South Carolina, Governor Nikki Haley still seems to embrace another great myth about the war. She said this week that some troubled souls, like the alleged killer of nine black Americans at a prayer service in Charleston, have “a sick and twisted view of the flag” and that those who simply respect southern “heritage” by displaying the flag are effectively victimized by those who embrace the banner as the ultimate racist emblem. This distinction is another myth.

The American Civil War was fought to maintain a way of life all right, but that “heritage,” that way of life, was all about maintaining slavery and white supremacy. While we’re taking down the Stars and Bars perhaps we ought to petition Turner Classic Movies to send Rhett and Scarlett off to a museum, too.

Myth + Ignorance = Politics…

The myths about our great war also feed directly into a shocking degree of ignorance about the seminal event in American history. Numerous studies have shown that many students have trouble placing the Civil War in the right decade of the 19th Century and some, even at very  good public universities, don’t know who won the war or why it was fought.

The 1948 Dixiecrat ticket

The 1948 Dixiecrat ticket

As ignorance intersected with mythology over the decades the Civil War became about “heritage” and “culture” rather than violent opposition to African-American civil rights. Meanwhile, politicians from Pitchfork Ben Tillman to Strom Thurmond to Richard Nixon invoked “states rights” as a cause as pure as Jefferson Davis’ motives.

Thurmond, a South Carolina Democrat who eventually became a Republican, denounced civil rights and espoused states rights when he ran for the presidency in 1948 on the Dixiecrat ticket. Thurmond’s campaign wrapped itself in the Confederate flag and won four Southern states and an electoral vote in Tennessee.

Even the great liberal Franklin Roosevelt kept his distance from race and civil rights while in the White House even when pestered to take action by his more liberal wife. FDR had no desire to upset the delicate balance of white political power below the Mason-Dixon line that kept southern Democratic segregationists in his party and in position of great power until the last half of the 20th Century.

The sainted Ronald Reagan, the modern GOP’s answer to Roosevelt, skillfully played the myth card when seeking the presidency in 1980. Reagan launched his campaign that year in Philadelphia, Mississippi at the Neshoba County fair. Sixteen years earlier, as New York Times columnist Bob Herbert recalled in a 2007 column, a young New Yorker Andrew Goodman and two fellow civil rights activists Michael Schwerner and James Chaney, a young black man, disappeared in Neshoba County. Their bodies wouldn’t be found for weeks.

Reagan in Philadelphia, MS to launch his 1980 campaign

Reagan in Philadelphia, Mississippi  to launch his 1980 presidential campaign

“All had been murdered, shot to death by whites enraged at the very idea of people trying to secure the rights of African-Americans.

“The murders were among the most notorious in American history. They constituted Neshoba County’s primary claim to fame when Reagan won the Republican Party’s nomination for president in 1980. The case was still a festering sore at that time. Some of the conspirators were still being protected by the local community. And white supremacy was still the order of the day.”

States Rights…

Reagan used his Philadelphia, Mississippi speech – he was the first national candidate to ever speak there – to explicitly endorse “states rights” and blow the dog whistle of racial politics. Reagan made absolutely no mention of the still white-hot struggle in Mississippi for civil rights, while appealing to conservative white voters. Read the speech today with Reagan’s folksy references to “welfare” and “personal responsibility” and it is easy to see why his Republican Party cemented what appears, twenty-five years later, to be a permanent political deal with white southerners.

1964 FBI poster seeking information of missing civil rights workers.

1964 FBI poster seeking information of missing civil rights workers.

“I believe in state’s rights,” Reagan said in Mississippi in 1980. “I believe in people doing as much as they can for themselves at the community level and at the private level. And I believe that we’ve distorted the balance of our government today by giving powers that were never intended in the constitution to that federal establishment. And if I do get the job I’m looking for, I’m going to devote myself to trying to reorder those priorities and to restore to the states and local communities those functions which properly belong there.”

The crowd of 10,000 voters – those who were there recall seeing no black faces in the crowd – knew what the candidate was promising and the “re-ordering” myth, at its heart a plea to return to – or maintain – a culture where the Confederate flag flaps in every southern breeze. It’s a small leap from Neshoba County in 1980 to the leader of the nation’s largest white supremacy group lavishing campaign money on Republican presidential candidates and members of Congress in 2015.

It is a moment to pause and praise the South Carolina governor for taking a decent and important step regarding that old and hateful flag. It would be easy to say the action is about 150 years late, but perhaps as symbols finally fall, even slowly, it will help to both destroy the myths and improve the knowledge about our great war. There is more to do.

Where it Began…

South Carolina in 1860

South Carolina in 1860

The next time you hear some politician proclaim fidelity to “states rights” or argue for the sanctity of the Constitution, remember that South Carolina, where our own great war began, rather skillfully and with no apparent irony invoked the Constitution in 1860 in an attempt to destroy the Constitution and leave the Union.

“A geographical line has been drawn across the Union,” South Carolina declared in seceding from the Union just weeks after Abraham Lincoln was elected, “and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that ‘Government cannot endure permanently half slave, half free,’ and that the public mind must rest in the belief that slavery is in the course of ultimate extinction.”

Our great war really was about ending human bondage and not merely Scarlett’s “heritage.” Both sides knew it then and we should know it now. It should be obvious that the flag hoisted by the rebels represents, even today, the bloody battle to perpetuate black Americans in slavery. The Confederate flag is simply a symbol of racism, bigotry and hatred and having it fly over a state capitol or adorn a license plate is deeply offensive and historically wrong.

A century and a half removed from our seminal event our great war remains shrouded in myth and buried in ignorance, but one need only read Lincoln’s greatest speech to better understand our true history and why we must – finally – come to terms with our great national catastrophe and its roots in white supremacy.

“All knew that this interest was somehow the cause of the war…”

“One-eighth of the whole population were colored slaves,” Lincoln said in 1865, “not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it.”

Taking down the flag is important, but hardly the full answer to our troubled racial past and still troubled present. “The Confederate flag should not come down because it is offensive to African Americans,” Ta-Nehisi Coates, an African-American, writes in The Atlantic. “The Confederate flag should come down because it is embarrassing to all Americans. The embarrassment is not limited to the flag, itself. The fact that it still flies, that one must debate its meaning in 2015, reflects an incredible ignorance. A century and a half after Lincoln was killed, after 750,000 of our ancestors died, Americans still aren’t quite sure why.”

Some Americans are still willing to “rend the Union” by perpetuating myths and playing on ignorance often while pursuing votes. That awful war never ends. Taking down the flag is a small step, but a correct one. Myths are dismantled and ignorance overcome, too slowly perhaps, but it must happen.


Strong Inside

I love college basketball and of course the love affair is in full blossom this time of year. My romance began in 1966 when a bunch of unknown upstarts from a Podunk school in El Paso – who ever heard of Texas Western College? – won the NCAA championship over the vaunted Coach Adolph Rupp and the University of Kentucky Wildcats.

TWCThere have been a thousand (or more) great college basketball games since 1966, but for my money none was better or more important than Texas Western’s 72-65 win over the big dogs from Kentucky and the segregated Southeastern Conference (SEC). The Texas Western Miners started five black players in that 1966 game. Kentucky didn’t have a black player until 1969. Adolph Rupp, the Baron of the Bluegrass, a Hall of Fame coach who won 82 percent of his games, went to his grave remembered for that championship loss by his all-white team to a talented and determined all-black team. It is stunning to remember that Rupp refused to shake hands with the Texas Western players after the game. And it should be just a little embarrassing to Kentucky fans today that the still vaunted Wildcats play their home games in Rupp Arena.

As Kentucky steams toward another national title, let’s just say that I’m for anyone but Kentucky. Call it a grudge and label it unreasonable, since the Wildcats now depend on spectacularly talented African-American players to maintain an unbeaten season, but I have a long memory.

Maybe its just Kentucky. I’ve long remembered a great line uttered by the supremely talented Civil War historian Gary Gallagher who once joked that Kentucky stayed loyal to the Union during the rebellion and “only joined the Confederacy after the war.” Adolph Rupp and his basketball team were still fighting that war more than a hundred years later.

Strong Inside…

All this old basketball and racial history came rushing back to me recently with the publication of a fine and important new book on basketball and race in the SEC, the pioneering courage of an African-American player at Vanderbilt who was the first to play in that storied league and how far we have come – and still need to go.

The book is Strong Inside, the gutsy story of Perry Wallace and his trials and triumphs in the SEC in the late 1960’s. The author Strong Insideis Andrew Maraniss (son of Washington Post associate editor David Maraniss, author of acclaimed books on Roberto Clemente, Bill Clinton and Vince Lombardi, among others).

In many ways the centerpiece of Wallace’s story is the account of a game he played in 1968 in Oxford, Mississippi. Remember the context. The Ole Miss campus was finally integrated in 1962, but not before a full-scale riot, a death and many injuries marked the school with scars that are still visible. The racist governor of Mississippi, Ross Barnett, played to local politics and his own ambition when he defied federal courts and President John Kennedy when James Meredith wanted to register for classes at Ole Miss.

In 1963, NAACP organizer Medgar Evers, an Army veteran of World War II, was assassinated in the driveway of his home in Jackson, Mississippi. Three young civil rights workers were murdered in Philadelphia, Mississippi in 1964. Bloody Sunday took place in Selma in neighboring Alabama in 1965. It was into that environment of hate, fear and racism and that a courageous Perry Wallace stepped when he set foot on the basketball court in Oxford for the first game in Mississippi featuring a black player.

Shortly before halftime a white elbow was thrown at Wallace, a blow “so fast that no one knows who threw the elbow,” Perry Wallace Senior YearMaraniss says. The blood flowed from Wallace’s wound, the crowd cheered and no referee blew a whistle. “When halftime ended,” the Washington Post noted in a recent review, “Wallace was left alone in the locker room with a bag of ice and a swollen eye. He was ‘shaken not just by the physical blow but by the relentless taunting. . . . He could hear the Ole Miss crowd react when his teammates returned to the court without him: ‘Did the nigger go home? Where’s the nigger? Did he quit?’”

Wallace didn’t quit. He helped Vanderbilt win that game, but had to make the long walk back to the basketball court all by himself. None of his white teammates made the simple gesture of walking with him. In other SEC basketball venues Wallace “was spit on and pelted with Cokes, ice and coins. At LSU, some Vanderbilt players claimed, a dagger was thrown on the court in Wallace’s direction. . . . In Knoxville, teammates remember, fans dangled a noose near the Vanderbilt bench.”

Perhaps the most remarkable aspect of Wallace’s story is the grace and dignity with which he dealt with such unspeakable abuse and overcame it all. Today Wallace is a widely respected law professor at American University in Washington, D.C. and a man humble in talking about his pioneering role in SEC basketball. Perry Wallace 1Vanderbilt officials, originally peeved when Wallace talked candidly at the end of his playing days about his experiences, finally made peace with him and retired his jersey in 2004. Perry Wallace deserves to be more widely remembered and Andrew Maraniss’s book is a wonderful start.

Banning the Dunk Shot…

Wallace stood just 6’5”, which, even considering the standards of his day, made him a rather small frontline player, but the guy could jump and Maraniss writes, “the ‘stuff shot’ was Wallace’s most reliable offensive move.”

The long-prevailing basketball wisdom holds that the “dunk shot” was banned to neutralize the inside play of the great UCLA post man Lew Alcindor – Kareem Abdul-Jabbar. But, Maraniss makes a compelling case that Wallace and his role as the first black player in the SEC also had much to do with banning the dunk. In that 1966 NCAA championship game Texas Western’s unforgettable big man, David Lattin, “embarrassed Rupp’s Wildcats with a powerful dunk over Pat Riley,” later a great NBA player and coach. “The next season,” Maraniss writes, “Lattin’s protégé, Wallace, embarrassed Rupp’s freshman team with his slam over Dan Issel,” also later an NBA star.

Shortly thereafter the NCAA rules committee, long dominated by Adolph Rupp, changed the rules to ban the dunk, a decision Ruppthat it is hard not to conclude was racially motivated. Rupp’s Wildcats never scheduled Lew Alcindor’s UCLA Bruins, but they played Perry Wallace’s Vanderbilt team twice every season. “While the [dunk] ban wasn’t directed at Wallace,” Maraniss says, “it was more than just a coincidence that the rules of the game changed just as the first black player – a prolific dunker – was about to enter the league that Adolph Rupp had dominated for decades.”

Sports at the college and professional level along with the United States military have been more successful than virtually any other segment of our culture in advancing the cause of racial equality. Both have their problems to be sure, but both have also shown what America might be if we finally come to grips with our haunted racial past and commit to a better future. Perry Wallace’s largely forgotten story is a testament to what one man can do to make ours a more perfect union and proof that heroes are found in many places, including above the rim.

Perry Wallace and Andrew Maraniss were recently featured on the NPR program Only a Game when they were interviewed by Bill Littlefield. NPR’s All Things Considered also recently featured a story on the book.

The Maraniss book was published by Vanderbilt University Press. Order it up. If you’re a basketball fan you’ll enjoy it. If you enjoy an uplifting and great American story you’ll love it.


Selma: The Movie, The History

The Movie…

If you haven’t seen the Oscar-nominated film Selma you should. While mostly snubbed by those whoSelma decide which of Hollywood’s features are deemed worthy of acclaim, the film is worthy of much acclaim, and is a stunning and passionate look at recent American history. Given the country’s continuing struggle to reconcile its aspirations regarding equality with its history of racism and hatred, Selma presents a part of our history that must be remembered and understood, celebrated and mourned.

Like all films that set out to depict real events Selma has historical problems. More on that in a minute. Yet even with these not insignificant problems, the portrayal of events leading up to the historic voting rights march from Selma to Montgomery, Alabama early in 1965, even when we know the outcome, makes for gripping viewing. Because of the realism displayed in the film to illustrate the hatred and gut wrenching violence deployed against peaceful protestors Selma is also at times difficult to watch.

Director Ava Duvernay was correct, I think, to put Dr. Martin Luther King, Jr. at the center of her important film. KingHistory tells us, of course, that as important as King’s role was in leading his Southern Christian Leadership Conference in a series of protests across the American South in the 1960’s, many, many others played key roles in advancing the cause of civil rights. Still it is impossible not to come away from Selma viewing King as a great and transcendent moral force, indeed a genuine American hero. Thanks to the multi-dimensional character that British actor David Oyelowo develops on the big screen, King becomes as vital for us as he became for his followers in those hard times a half century ago. It is difficult to understand how Oyelowo was passed over for a Best Actor nomination. He deserves it.

I wondered as I watched the brutal scenes where peaceful African-American protestors are set upon by nightstick and horse whip armed Alabama state troopers wearing gas masks, if a whole new generation of Americans might come to understand, thanks to Selma, the unbelievable courage and determination shown by Americans who were merely seeking the right to vote. History fifty years old might as well be ancient history for many Americans and seeing the brutality and the blood in color on the big screen cannot help but underscore the reality of racism and hatred better than the old grainy black and white television film most of us have seen in documentaries.

Selma is a stunning reminder of where we came from, how far we have come and, unfortunately, how very far we still must go. Go see it and take someone under 35 years old with you.

The History…

I admit to being initially put off by the lack of political nuance in the film, not to mention the portrayal of Lyndon Johnson, but after reading and digesting much of the criticism and praise of Selma I find myself in agreement with Darryl Pinckney who wrote in the New York Review of Books: “A film based on a historical subject, even a beautifully shot one, can remind us without meaning to that although reading in the US is a minority activity, the book is still the only medium in which you can make a complicated argument.”

Perhaps it’s naïve on my part, but I harbor hope that the controversy about the movie, particularly the treatment of Johnson and the virtual absence of acknowledgement of the role congressional and presidential politics played in passage of the Voting Rights Act, will stimulate a greater understanding of the confluence of hatred, protest, violence, politics, bipartisanship, racism and religion that marked the eventual passage of the landmark legislation fifty years ago.

Every film, I guess, needs a villain and Selma has several. I would be personally more comfortable if the j-edgar-hoover-240-400x295filmmakers had cast J. Edgar Hoover, the long-time and truly despicable director of the FBI, as an even greater villain. Hoover deserves that treatment more than Johnson for, as LBJ’s one-time press secretary Bill Moyers has noted, “There’s one egregious and outrageous portrayal [in the film] that is the worst kind of creative license because it suggests the very opposite of the truth, in this case, that the president was behind J. Edgar Hoover’s sending the ‘sex tape’ to Coretta King.”

Moyers refers, of course, to the notorious audio tape made by the FBI and sent to King in an effort to threaten him and, Hoover hoped, drive King from leadership of the civil rights movement. As Moyer says, “some of our most scrupulous historians have denounced” the charge that Johnson had anything to do with the tape. “And even if you want to think of Lyndon B. Johnson as vile enough to want to do that, he was way too smart to hand Hoover the means of blackmailing him,” Moyers said recently.

The film also overplays Johnson’s opposition to the Selma march. In fact, Johnson understood as well as King that very public displays of protest would be needed to create the right kind of political LBJ-MLKenvironment in Washington, D.C. to pass voting rights legislation in 1965, particularly in the wake of the historic passage of civil rights legislation just a few months earlier. When Johnson, along with the rest of the country, saw the brutality in Alabama he realized the political moment had arrived and went to Congress quickly to insist on action.

This scene amounts to the climax of the film and disappointingly much of the drama of those moments is lost on the screen. The staging is all wrong for anyone who knows the history. Johnson spoke in the packed chamber of the U.S. House of Representatives where everyone from the members of the Lyndon Johnson, John McCormack, Carl HaydenSupreme Court to racist southern Democrats expected to hear an historic speech. They were not disappointed. Perhaps it was impossible to film this critical moment of the story where it actually took place, but for whatever reason Johnson’s speech in the film has little of the power it had at the time. It is reported that King, who was watching on television, wept – some of his followers said they had never seen that before – when Johnson adopted the slogan of the movement and vowed “we shall overcome.”

Additionally, Johnson was passionate and animated during that speech, not droll and understated as the usually excellent actor Tom Wilkinson plays the scene in Selma.

Still it is asking too much for one film, even a really fine one, to capture the full story of a tremendous turning point in American political history. If the film succeeds in further explaining and underscoringyoungjohnlewis the role King and his devoted followers – men like Georgia Congressman John Lewis who was nearly killed during the march – played in advancing the cause of civil rights, then that is an artistic accomplishment to be praised and awarded by audiences and by Hollywood.

However, amid the quibbles over historical details and the nit-picks over interpretation it is up to the rest of us to appreciate – and try to recreate in our own time – the enduring political lessons of Selma and the civil rights era. As the historian Julian Zelizer has so ably documented in his terrific new book The Fierce Urgency of Now, many different and sometimes conflicting strands came together in 1964 and 1965 to move the nation and the cause of civil rights forward. King and other civil rights leaders bravely dramatized the racism and hatred afoot in the country and made the cause of civil rights a moral and religious issue. The tragedy of John Kennedy’s assassination gave the cause new power in the hands of a determined new president. Johnson’s stunning landslide win over Barry Goldwater in 1964 (Goldwater opposed the Civil Rights Act passed just before election) gave Johnson a great issue and both greater political and moral authority to create laws. Just as important, the 1964 election created a huge Democratic majority in Congress that LBJ mobilized as a master political strategist. Northern Republicans, particularly Senator Everett Dirksen of Illinois and Representative Charles Halleck of Indiana, embraced civil rights and worked across the partisan divide to pass vital legislation. And organized labor, many in the business community and Protestant, Catholic and Jewish congregations joined the fight at the grassroots. The world was watching and much of the country did come together at an historic moment.

Our history tells us that political and cultural change happens slowly; sometimes so slowly that painful and tragic events precede the needed change. Change almost always involves work from the bottom up and the top down. And change that bends that arc of history toward justice usually means people and politicians must abandon old ways and grow and change. Once he reached the White House, Lyndon Johnson ceased to become a southern politician trapped by the old ways and attitudes of his region. He grew. Dirksen, Halleck and other Republicans saw beyond narrow, conservative interpretations of what the federal government might do. They grew. One has the sense that Martin Luther King was growing, as well. By the time of his death King’s agenda was still centered on civil rights, but had expanded his moral leadership to oppose misguided U.S. foreign policy and embrace a fairer economic policy.

At its best the film and the history reminds us of the long, twilight struggle for racial equality that has been a fixture of the country since its very beginning and that the struggle goes on. It also reminds us of what brave and determined individuals can do to correct injustice as well as what is possible when the people and their politicians are courageous enough to change. There is also much to celebrate in the fact that such a film was made by a supremely gifted African-American woman.

img_vr_373Selma also reminds us that fifty years on the right to vote in the United States is still a controversial issue. A U.S. Supreme Court decision in 2013 gutted key parts of the Voting Rights Act’s “pre-clearance” provision that mandated that states with a history of voting rights abuses receive Justice Department approval before changing their laws. The Congress shows no sign of pushing back on that unfortunate decision.

As the Brennan Center for Justice at the NYU Law School recently reported: “Increased single-party control in state capitals has accompanied a renewed push for voting restrictions. There are strong pushes for strict photo ID requirements in some Republican-led states, including in places where laws were struck down by state courts. This year, the courts — including the U.S. Supreme Court — are again poised to rule on voter ID and other election laws. Courts failed to block a number of restrictive laws last year, and without clear limits, states appear ready to move forward with harsh new measures.”

The film, our history and our current condition remind us both of where we have been and where we still need to go. Go see Selma.


When to Quit

One of the most difficult things to do in politics – perhaps the most difficult – is to quit. When do you cut-and-walk-away from a Marriageposition that is no longer correct, or defensible? How do you back down when time moves on and you are stuck on the wrong side of history? The wrong side of morality? The wrong side of the Constitution?

There are political calculations involved in quitting. There always are. What will constituents think who passionately continue to believe in a position that can no longer be sustained? When do you call off the lawyers, save the money and the time, and try to reconcile the age old problem of holding two conflicting ideas in your mind at the same time? How to admit that by continuing to advocate what you believe to be right, you will really be wrong?

The Ninth Circuit Court of Appeals has now presented Idaho with this most difficult moment. The most fierce advocates for denying Ninth Circuitsame sex marriage have now been told – repeatedly – that they are behaving in a manner not permitted under our Constitution. Those fierce advocates would be, in many cases, also the greatest defenders of the Constitution, at least the one they think they know. But now a bunch of faceless, nameless judges have said the Constitution’s guarantees of equal treatment under the law really do apply to all our people, even those who want to marry someone of the same sex. And what do you do?

Governor George Wallace stood in the school house door in Alabama to defy the Constitution. Governor Orval Faubus forced an American president to send paratroopers to Little Rock when he couldn’t bring himself to quit. Governor Ross Barnett permitted a riot to break out and people to die on a college campus in Mississippi rather than cut-and-walk away. Upholding the Constitution is difficult and dangerous business, just like quitting a position is difficult and, at least, politically dangerous.

Perhaps the most wonderful thing about America – and also the most difficult – is the idea that all the provisions of the sacred Constitution apply even to those we most fervently disagree with. I don’t like your speech, or your flag burning, or your race or religion, I disagree with your life style, but it doesn’t mean – it can’t mean – that my Constitution isn’t also your Constitution.

One can appreciate how far Idaho officials charged with defending the unconstitutional have gone by reading the Ninth Circuit’s decision (or, for that matter, Idaho federal Magistrate Candy Dale’s earlier decision). The arguments used by Governor Butch Otter’s lawyers to defend Idaho’s official position are, there is no nice way to say it, utter nonsense and if the matters at hand were not so serious the arguments would be just this side of laughable.

One of those nameless, faceless judge is Judge Stephen Reinhardt. He certainly looks like a judge, doesn’t he? Writing for the Ninth Circuit, Reinhardt says at one point in his decision: “Same-sex marriage, Governor Otter asserts, is reinhardtpart of a shift towards a consent-based, personal relationship model of marriage, which is more adult-centric and less child-centric.”

The Judge, it would appear, was attempting to get to the essence of why Idaho has so strongly resisted same-sex marriage, but as he traveled the state’s road and attempted to reconcile Idaho’s claims with what the Constitution says, he found there was no there there. In a footnote, the Judge said this, really:

“[Otter, or more correctly his lawyer] also states, in conclusory fashion, that allowing same-sex marriage will lead opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies. We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock-and-roll.”

The Constitution doesn’t say anything about being a good parent, or a good spouse. It says a lot about equality under the law and now the Ninth Circuit with its decision, and the Supreme Court with silence, has told Idaho you need to stop treating people differently, because the Constitution of the United States says so.

Moving on from a long-held position is not only difficult, it can also be constructive and help foster understanding and greater acceptance. It is a teaching moment if someone wants to teach. A leadership moment if someone wants to lead. The U.S. Constitution is the textbook.

When Governor Faubus in Arkansas couldn’t reconcile himself – and his constituents – to the fact that the fundamental law of his nation allowed black girls to go to school with white girls in Little Rock in 1957 he wrote the first sentence of how history has remembered him to this day. The Encyclopedia of Arkansas says this about Orval Faubus, the longest serving Governor in the state’s history: “His record was in many ways progressive, but he is most widely remembered for his attempt to block the desegregation of Little Rock’s Central High School in 1957. His stand against what he called “forced integration” resulted in President Dwight D. Eisenhower’s sending federal troops to Little Rock (Pulaski County) to enforce the 1954 desegregation ruling of the Supreme Court.

Faubus“The Governor is “most widely remembered” for defying the Constitution and clinging to his old, illegal and morally indefensible position. Not the epitaph any politician imagines for himself.

Will the arguments about same-sex marriage continue in Idaho? Of course, just as they continued regarding race and equality in Little Rock in the 1950’s and beyond. Can political leaders, particularly those who have so adamantly defended what they have now been told is indefensible, help begin a more constructive conversation about fairness and equality? Of course they can. But, will they? Courage and leadership are required. Can they do it?

In the wake of the Ninth Circuit decision, Idaho has filed another appeal, but they will have to quit eventually. The Constitutional logic is too obvious. How they do it, the walking away and quitting, will be almost as telling as what they fought so strongly to prevent – equality and fairness.


Ethical Standards

Bart_GiamattiI’d be willing to wager, if that weren’t an inappropriate thought, that Bart Giamatti is smiling today.

I hope, and believe, that the late, great former Commissioner of Baseball smiles in a peaceful place where everyone is surrounded by green grass with a brilliant blue sky overhead. A doubleheader is scheduled and Walter Johnson is pitching to Lou Gehrig. But, the real reason the great Commissioner, whose tenure came and went much too fast, is smiling today is because he knows that what Adam Silver, the new NBA commissioner, did yesterday was all about preserving a public trust.

Bart Giamatti, a president of Yale and a Renaissance scholar, was both an unorthodox and brilliant choice to run major league baseball. He got the job just in time to ban Pete Rose for life for betting on games and lying about it. As the first President Bush, an Eli and a great baseball fan, said in 1989 on hearing the news of Giamatti’s shocking death at age 51, he ”made a real contribution to the game, standing for the highest possible ethical standards.”

That’s it – the highest possible ethical standards. That’s what Giamatti stood for and now Adam Silver, too.

Fay Vincent must be smiling today, as well. He had the guts and the high ethical standards to ban the insufferable George Steinbrenner back in 1990. Unfortunately, that ban was later rescinded, but it had its impact. George, the blustering billionaire bully, became a punchline on Seinfeld and we delighted in debating whether the Yankee owner depicted on the show – and in real life – was a bigger boob than his hapless employee George Costanza. “Were’s Costanza? I need my Calzone…”

How Did He Do It?

There are many lessons from Commissioner Silver’s action yesterday; action that banned L.A. Clipper’s owner Donald Sterling for life from involvement with his team or the NBA, fined the racist and misogynist billionaire the maximum allowed, and set the wheels in motion to force the sale of his team. There are also many questions left hanging, one being how does a guy like Donald Sterling survive so long and thrive so well economically when, it would appear, that everyone who knew him knew him to be a first class jerk?

The simple answer is that the highest reaches of a capitalist system don’t always equate with either merit or – that term again – ethical standards. At some level Sterling survived because he was rich and litigious, and apparently because he was able to purchase protection for his personal behavior from the NAACP, among others, by spreading around a few six figure charitable contributions. By most accounts Sterling’s Clipper’s have consistently been among the most inept professional sports franchises, run by a rich guy with no class and little regard for quality who now stands to walk away, if indeed he does walk away, with hundreds of millions made on an investment of just $12 million. The guy has been characterized as an L.A. “slum lord,” a fact long known to the NBA’s leadership and his other owners. Yet, that sordid past only caught up with him when his girlfriend recorded his racist and sexist inner most thoughts.

Ironically it took an eloquent, dignified, classy African-American coach, Doc Rivers, to help make Sterling’s clueless Clippers a playoff contender this year. Also ironic is the fact that the nerdy Alan Silver, scrambling to establish his credibility as commissioner – and just like Bart Giamatti before him – does the right thing, and having upheld the highest ethical standards, now enjoys and deserves vastly enhanced respect and power.

When I tried to play basketball a lot of years ago we had a term for that once-in-a-while moment when you’re all alone and about to kiss the ball gently off the glass for an easy and uncontested lay-up. Such a shot was “a bunny” and no one wanted to miss such an opportunity. The 29 other NBA owners, all business people in a customer service and entertainment industry, now have their own uncontested lay-up. They better not blow it. They may not want to acknowledge it, but the owners now clearly have a public trust to maintain and not merely a business to run. If they buck themselves up and uphold the highest ethical standard they will honor the old adage of doing well by doing good.

National Football League Commissioner Roger Goodell might not be smiling today since he must know that once the Sterling hubbub dies down attention will inevitably shift toward his handling – or avoiding – of the demands that the owner of the Washington NFL franchise do something about the name of his team. Goodell’s and the NFL’s moment of truth cometh.

The Larger Institutional Issues

Todd Purdum, writing in Politico today, quotes Santiago Colas, who teaches a course on the “Cultures of Basketball” at the University of Michigan, as saying the sad Sterling episode seems like an important moment in the on-going national struggle to deal with race. “I hope it’s a moment that’s not lost,” Colas said. “The problem is that we get really excited about spectacular demonstrations of racism, and in the process of our excitement, we overlook the larger institutional issues that endure.”

As Neal Gabler wrote today, “Sterling is not only a pariah; he is irredeemable. His sentiments are so out of fashion that no one can defend him.” No one save the nation’s top blowhards-in-chief, the representative of the larger institutional issues that endure, Trump and Limbaugh.

Perhaps it was completely predictable that the champion of the Obama birth certificate “scandal” would take the edge of Sterling’s words by suggesting that the poor guy was set up by his girlfriend. “He got set up by a very, very bad girlfriend, let’s face it,” Donald Trump said and, of course, he said it on Fox News’s “Fox & Friends.” Trump did add he thought Sterling’s words were “despicable,” but I would suggest only slightly more despicable than having Trump comment on anything.

Rush Limbaugh went even farther into the weeds suggesting that Sterling was a victim of a vast left-wing conspiracy to force him to sell his team to a group led by Magic Johnson. You can’t make this stuff up. Trump and Limbaugh and Sterling do prove one point about America – you can be worth a lot of money, command a lot of attention and still be an idiot, while completely overlooking the issues that sadly endure.

No Problem With That

Back before Bart Giammati became baseball commissioner he was the President of the National League. A guy who had never really played the game, but had written books about Dante, was suddenly in charge of a big chunk of baseball. Naturally he ruffled feathers among some players and managers when he insisted on cracking down – ethical standards again – on enforcement of the rules, including the legendarily difficult to enforce rule about a pitcher’s balk.

In a game in 1988, Pittsburgh Pirate pitcher Jim Gott balked three times in one inning and, as a result, gave away a key game to the New York Mets. The next day, Gott was quoted as saying about Giamatti: ”A guy who’s a fan governing the National League – I have problems with that.”

Not many remember Jim Gott today and his life-time 56-74 pitching record, but most every fan remembers the guy who upheld the ethical standards of the game he loved. He’s smiling today. God rest his soul. The old baseball commissioner has found a fellow traveler in the new NBA commissioner and, I for one, have absolutely no problem with that.



donaldsterlingSo much for a post-racial America.

Americans of color may have significantly more challenges to overcome with employment, education, health and housing than most white Americans, but it takes the racist rants of two old white guys to again bring into sharp relief the sobering fact that race is still the nation’s great unresolved issue. The optimists among us thought, for a moment at least, that the election more than five years ago of the first black president ushered in a “post-racial” new day. It didn’t.

If anything the nation’s struggles with race and class, not to mention gender and sexual orientation, remain as corrosive as ever. Fox News and a few pandering Republicans turned a deadbeat Nevada rancher into a “folk hero” before his own ignorant ravings about race showed every thinking person just what Cliven Bundy is really all about. While you can apparently get away with cheating the federal government out of a $1 million in lease payments by just waving around the Constitution, waxing nostalgic about slavery is, thankfully, still un-American enough to draw a belated rebuke from Rand Paul. Maybe Bundy should have read all of the Constitution, including the 13th, 14th and 15th Amendments.

The case of L.A. Clippers owner Donald Sterling is both more complicated and ultimately more troubling. Bundy is just the latest incarnation of the old John Birch Society/Posse Comitatius mind set that rises and falls periodically across the American West. The rise almost always occurs with a Democrat in the White House. With typical Bircher incoherence Bundy invokes the Constitution of a government he won’t recognize. He likes the 2nd Amendment just fine, but not those pesky provisions of the Constitution related to the power of federal courts. The Bundy mind set has found its perfect foil in the young, self-assured black man in the White House. Enough said, except perhaps that the Republicans who rushed to support this nut case still have plenty of explaining to do.

Sterling, the billionaire L.A. real estate developer, is a tougher case. He has apparently long been known for his racially tinged rants and has been in and out of court fighting discrimination cases that, among other things, alleged that he refused to provide repairs for his black tenants.

“It bothers me a lot that you want to broadcast that you’re associating with black people,” Sterling allegedly told his mixed race girlfriend in recording she apparently made. “Do you have to?”

Later, just to double down his racism with a gob of sexism, he added: “You can sleep with them, you can bring them in, you can do whatever you want. The little I ask you is not to promote it on that and not to bring them to my games.”

As the Washington Post reported:

“Sterling’s history paints a picture of a man who has let slip bigoted beliefs for years — and has, at least so far, sidestepped major repercussions. He was sued in 1996 for sexual harassment. In 2003 he testified in a separate court case that he occasionally paid women for sex. The same year, Sterling was sued by 19 tenants of a building he owned, along with the Housing Rights Center; they claimed Sterling’s employees refused repairs to black tenants and frequently threatened to evict them. Sterling settled the case for an undisclosed sum.

“In 2009, Sterling spent $2.73 million to settle another suit, this time brought by the Justice Department, which alleged Sterling refused to rent his apartments to non-Korean tenants, preferring that black and Hispanic prospective tenants look elsewhere. The lawsuit quoted Sterling as saying in sworn testimony that ‘Hispanics smoke, drink and just hang around the building,’ adding that ‘black tenants smell and attract vermin.'”

The National Basketball Association is investigating. Of course they are. It sounds like they might have done some looking around a long, long time ago. How the Sterling matter is handled by the NBA and its new commissioner will be vastly more important in the long run than any shooting-off-the-mouth of Sean Hannity’s new best friend.

Sterling is, after all, a long-time member of one of the world’s most exclusive clubs – the 30 owners of professional basketball teams. Sterling’s team, until last week a serious playoff contender, is coached by a black man. The team’s and the league’s fan base is to a substantial degree minority. The league’s big name stars, many of whom quickly condemned Sterling’s remarks, are African-American. The Clippers low key pre-game protest where white and black players wore their shirts inside out is just a preview of what’s to come from a professional league that owes its popularity, not to mention the money it generates for owners like Sterling, to the success of “black people” like LeBron James and Kevin Durant.

It’s not as though the NBA didn’t know about this guy. “Donald Sterling,” Paul Westphal, an NBA coach and great NBA player before that, told columnist Mike Lupica, “was always the worst-kept secret in the NBA.” Now, it’s get serious time – a teaching moment – for new NBA Commissioner Adam Silver. Silver’s response and the response of the other 29 members of Sterling’s exclusive club will tell us a lot about a high profile big business in post-racial America.

The U.S. Supreme Court tells us a lot, as well. The Court’s 2013 ruling throwing out a major part of the Voting Rights Act and more recently upholding a Michigan law that bans race conscious admissions at the state’s colleges and universities are based either on wishful thinking that racial issues in the age of Obama still don’t bedevil our culture or that the courts simply have an extremely limited role in ensuring that all Americans are not merely created equal, but are treated that way, as well. Either explanation ignores today’s front page.

It seems self evident that Barack Obama’s election in 2008 not only failed to herald the arrival of a post-racial America, but rather stoked the long simmering fires of racism that were, we need to remember, originally written into the nation’s founding creed. An ignorant Nevada cowboy and the boob billionaire owner of a professional sports franchise certainly don’t represent the vast sweep of good and decent Americans of all races, creeds, colors and political persuasions, but they still represent too many.

“When ignorant folks want to advertise their ignorance, you don’t really have to do anything,” Obama said of Donald Sterling. “You just let them talk. That’s what happened here.”

Oh, if only it were that easy.


Assessing LBJ

johnson200-62fbf6627cd90a3d7677dbcd0b201aa00477e8bb-s6-c30One of the best biographers of Lyndon Johnson, the presidential historian Robert Dallek, has often said that it takes a generation or more once a president has left office for us to truly begin to assess his presidency. Historians need access to the papers. Those in the presidential supporting cast, the aides, the associates, the enemies, need time to write and reflect on the man. Once those pieces start to come together, we can begin to form history’s judgment. LBJ’s time seems more and more at hand.

Dallek titled one of his volumes on Johnson – Flawed Giant. That, I suspect, will be the ultimate verdict of history. A big, passionate man with supremely developed political skills and instincts who was, at the same time, deeply, even tragically, flawed.

Frankly it is the juxtaposition of the greatness and the human failings that make the 36th president so endlessly fascinating and why contemporary and continual examination of his presidency – as well as his political career proceeding the White House – is so important.

All that Johnson accomplished as part of his domestic agenda from civil rights to Medicare is balanced – some would say dwarfed – by the tragedy of Vietnam. His deep compassion for those in the shadows of life is checked by the roughness of his personality. Johnson could both help pass the greatest piece of civil rights legislation since the Civil War and make crude jokes about blacks. He could turn on his Texas charm in cooing and sympathetic phone calls to the widow Jackie Kennedy and then issue orders to an underling while sitting on the toilet.

Johnson presents the ultimate challenge to those of us who like to handicap presidential greatness. Does it automatically follow that a great man must also be a good man? Few would measure up to such a reckoning. And just how do to assess greatness?

I think I’ve read every major biography of Lyndon Johnson: Dallek’s superb two volumes, Robert Caro’s monumental four volumes and counting and wonderful volumes by Randall B. Woods and Mark K. Updegrove. I’ve read Johnson’s memoir The Vantage Point and Lyndon Johnson & the American Dream by the young Doris Kearns before she was Godwin. Michael Beschloss has dug through the Johnson tapes and produced great insights into the man and his politics.

You can’t study LBJ without going deeply into the American experience in southeast Asia. Biographies of Senators Mike Mansfield, J. William Fulbright, Mark Hatfield and Frank Church, among much other material, helps flesh out Johnson’s great mistake. More recently I’ve gorged on the reporting of activities surrounding the 50th anniversary of passage of the landmark Civil Rights Act of 1964, undoubtedly Johnson’s single greatest accomplishment.

Through all of this sifting of the big record of a controversial man I’m left to ponder how we fairly assess the Texan who dominated our politics for barely five years in the Oval Office and left in his wake both great accomplishments and the legacy of more than 58,000 dead Americans in a jungle war that a stronger, wiser man might – just might – have avoided.

The historian Mike Kazin wrote recently in The New Republic that LBJ doesn’t deserve any revisionist treatment for his “liberal” record because what really mattered was the war. “The great musical satirist Tom Lehrer once remarked,” Kazin writes, “that awarding the Nobel Peace Prize to Henry Kissinger made political satire obsolete. The same might be said for those who would turn the President most responsible for ravaging Vietnam into a great liberal hero.”

Historian David Greenberg, also a contributing editor for The New Republic, takes a somewhat different and more nuanced view, a view more in tune with my own, when he wrote recently: “No one can overlook anymore (for example) Washington’s and Jefferson’s slave holding, Andrew Jackson’s Indian removal policies, Lincoln’s and Wilson’s wartime civil liberties records, or FDR’s internment of Japanese Americans. We know these men to be deeply flawed, in some cases to the point where celebrating them produces in us considerable unease. But, ultimately, we still recognize them as remarkable presidents whose finest feats transformed the nation for the good. So if in calling someone a hero it’s also possible to simultaneously acknowledge his failings, even terrible failings, then Lyndon Johnson deserves a place in the pantheon.”

Peter Baker, writing recently in the New York Times, asks perhaps the best question about the on-going reassessment of Lyndon Johnson. Given the state of our politics today, the small-minded partisanship, the blinding influence of too much money from too few sources and the lack of national consensus about anything, Baker asks “is it even possible for a president to do big things anymore?”

For better or worse, Baker correctly concludes, LBJ represented the “high water mark” for presidents pushing through a big and bold agenda and no one since has approached the political ability that Johnson mastered as he worked his will on both Republicans and Democrats in Congress. The reassessments of Lyndon Johnson will go on and I suspect the “flawed giant” will continue to challenge our notions of greatness for as long as we debate the accomplishments and the failings of American presidents.