Archive for February, 2015

Book Review: ” The Last Holiday A Memoir” by Gil Scott-Heron – posted 2/22/2015

February 22, 2015 1 comment

When my friend Howard told me about Gil Scott-Heron’s posthumously published memoir The Last Holiday, I did not know what to expect. I had not known he had written a memoir as well as a couple of novels. I had always loved Gil’s music.

Because of Gil’s political songs, I speculated that the memoir might be a political book. While Gil’s politics figure in, the book is much more a personal reminiscence about family with vignettes from various points in his life.

The good news is that Gil writes really well. The book is not conventional. I think it has a jazzy, riff-like quality. While it is somewhat chronological, Gil does jump around and there are many gaps and unanswered questions. Early in the book, Gil says the following:

“I have not always been proud of everything that has happened or that I have done throughout my life. But I consider myself fortunate. I was raised by two women – my mother and grandmother – who were both dedicated to my well-being and did everything they could to make sure I had every opportunity to succeed in life. They were dedicated to my book learning and were examples of what I should try to be as an adult and as a gentleman. The mistakes have been due to my own poor judgment both of people and circumstances.”

He doesn’t whitewash his problems but he doesn’t discuss them either. It is hard not to think about the tragedy of his early death. I don’t pretend to understand. I know he had big substance abuse issues and he did some time for possession of cocaine,possession of a crack pipe and violation of a plea deal. The drug charges dogged him until his parole in May 2007. And this was the person who wrote Angel Dust and The Bottle.

As I mentioned, there were some questions not addressed. What steps, if any, did Gil take to address his substance abuse issues? It appeared to have totally messed him up. In his personal life, none of his relationships lasted. He had three failed marriages and three children. He does write about his difficulty loving anyone and his resulting isolation. He describes a stroke he had in 1990. The circumstances of his death remain murky. He was apparently HIV positive. That is not mentioned in the book.

The book has a positive message though. Gil writes:

“We all need to see folks reach beyond what looks possible and make it happen. We need more examples of how to make it happen. We will all face difficult circumstances along the way that will challenge our self-confidence and try to disrupt our decisions about the directions we wish to choose.
I hope this book will remind you that you can succeed, that help can arrive from unexpected quarters at times that are crucial.”

Stevie Wonder plays a major role in the memoir and I think Stevie helped Gil enormously. Gil greatly admired Stevie and he traces Stevie’s musical growth. He performed with Stevie and the book includes a lot about Stevie’s long struggle to create a national holiday for Dr. King. Gil was very much a part of that. In the 80’s he sometimes opened for Stevie and toured with him. His love for Stevie and his appreciation for the joy Stevie’s music unleashed is pretty transparent. He includes some poems about Stevie. I like this one:

“That meant the harmonica on “Fingertips”
Was no sooner settling on Stevie’s lips
Than what inevitably came to their mind
For some reason was that the brother was blind.
Which obviously didn’t mean a helluva lot
‘Cause it said what he didn’t have but not what he got.
His music hit a certain chord
And moved you like the pointer on a Ouija board
Your feet made all of your dancing decisions
And didn’t give a damn if he had X-ray vision.
So why was it that people always remarked
“He’s blind” as though Stevie was condemned to the dark?
Suppose you looked at it the opposite way:
They had 20/20 vision and still couldn’t play.
And when they danced seeing didn’t help them keep time
And things like that made me wonder just who was blind.”

Gil tells some good stories about his experiences in school and college. Gil got recruited to go to Fieldston, an elite private school in New York and he does a good job describing the distance that Fieldston was from his everyday life. His mother got very sick the day of his interview for the school. He had to leave abruptly but he handled the interview committee so impressively and respectfully that he got accepted. Later he tells a story about a a conflict he had with a music teacher who had it in for him. Gil was written up and disciplined for playing the Steinway piano at the school. Gil does a beautiful job of conveying the disciplinary meeting. His mother came to the school to participate in the meeting. She deftly defended her son in a polite but most effective fashion.

Gil had anything but a traditional academic career. He went to Lincoln University and later John Hopkins for grad school. School always seemed to come second to creative pursuits.

He was such an important voice on a wide range of issues. Racism and anti-apartheid – think “Johannesburg”. Nuclear power – think “We Almost Lost Detroit”. Ronald Reagan – think “B Movie”. My favorite may be “Winter in America” which still seems so apropos.

While he is sometimes recognized as a precursor of rap because of his eloquent use of the spoken word, I don’t see anyone around filling his unique niche. Gil was a very accessible artist and he had a great talent for communicating his politics poetically to all kinds of people.

I would also mention he tells a bunch of entertaining stories about hanging around with celebrities. He was around Bob Marley, Kareem Abdul Jabbar, and Michael Jackson. You get some sense of what they were like.

From the memoir, it sounded like his personal hero was Thurgood Marshall. Surprisingly, he mentions Marshall a number of times. He clearly believed that to change America you had to change the law.

Check out this fine book. I expect it will change and deepen your perspective on Gil. I wish we had him now to be talking and singing about the world, its contradictions and absurdities. When I heard John Legend and Common sing “Glory” at the end of the movie Selma, I thought “WOW!” We need more of that. Gil brought that kind of power. His voice is so missed.

A Sham Challenge to Obamacare – posted 2/15/2015 and published in the Concord Monitor on 2/25/2015

February 15, 2015 1 comment

This piece appeared in the Concord Monitor on 2/25/2015 under the title “Just How Low Can The High Court Go?”

Probably, if you are like me, you were surprised to learn that the U.S. Supreme Court had accepted another case about Obamacare. Wasn’t that settled before when the Court ruled the law was constitutional? Isn’t this deja vu all over again?

Well apparently not. In a highly unusual move, the U.S. Supreme Court accepted the case, King v Burwell, for briefs and oral argument. The oral argument is March 4 and a decision is likely at the end of the Court’s term in June.

The reason this was unusual is that typically the Supreme Court will not hear a case unless there is a split in the federal circuit courts. That was not true in this situation.

The federal circuit courts who had addressed the issues raised have found against the plaintiffs The Supreme Court scooped the case up before the full D.C. Circuit Court had a chance to rule on it. A divided 3 judge panel on the D.C. Circuit had ruled in favor of the plaintiffs initially, but the full D.C. Circuit vacated their opinion and was widely expected to support the law.

One can only speculate on the reasons why the Supreme Court grabbed the case prematurely. It appears to be the worst kind of judicial activism, conservative variety. After a generation of people on the Right whining about liberal judicial activism, the Supreme Court is demonstrating that a right wing court can aggressively flex judicial activist muscles too.

At issue in King v Burwell is one four word phrase – “established by the State”. The plaintiffs argue that Americans who live in states, including New Hampshire, that decided to use the federally facilitated marketplace are not entitled to financial assistance. They say that Congress only intended for Americans to receive insurance subsidies through state exchanges.

Their case rests on the interpretation of an isolated phrase in the context of a much longer, comprehensive statute.

It is stating the obvious but the Affordable Care Act was designed to make health care coverage affordable for all Americans, regardless of their state of residence. Providing financial help to low and moderate income Americans is the law’s key method for making insurance premiums affordable.

Under the Affordable Care Act, every state is required to have a marketplace to help Americans shop for affordable coverage. While states can set up a marketplace themselves, the law directs the federal government to set up exchanges in states that do not.

The drafters of the law wanted the federal exchanges to be the same as the state exchanges. Regardless, these states would still get an exchange, just a federally facilitated one.

So where did the case of King v Burwell come from? A recent article by investigative reporter Stephanie Mencimer of Mother Jones Magazine sheds some light. A group of conservative lawyers hatched the legal theory behind King v Burwell at a 2010 conference sponsored by the American Enterprise Institute. The lawyers at the conference had one goal: develop a theory that could kill Obamacare.

A libertarian think tank, the Competitive Enterprise Institute, which is funded by the Koch Brothers, tobacco companies, oil and gas firms, big pharmaceuticals and conservative foundations, bankrolled the case.They also worked to recruit plaintiffs. At the 2010 conference, Michael Greve, the chair of the Competitive Enterprise Institute was widely quoted as saying the following about Obamacare: “This bastard has to be killed as a matter of political hygiene.”

The Competitive Enterprise Institute found four plaintiffs. A real problem is that it is almost impossible to show that any of them have suffered any harm as a result of Obamacare. A victory for the plaintiffs would mean they would end up with the right either to pay more for their health care coverage or to go uninsured.

It remains to be seen whether the Supreme Court will consider the matter of whether the plaintiffs do, in fact, have standing to sue. In separate investigations, the Wall Street Journal and Mother Jones have both raised serious questions about the plaintiffs and whether there is actually a case or controversy here, which is a jurisdictional requirement.

Two of the plaintiffs appear motivated by hatred of President Obama. One has called him the “anti-Christ” and said he won election by getting “his Muslim people to vote for him”. The other referred to him on Facebook as “the idiot in the White House”. When asked what he got out of this case, he replied that the only benefit he would receive from the case was the satisfaction of smashing Obamacare.

The tragedy of King v Burwell is that success for the plaintiffs could wipe out health insurance for millions. It has been estimated that over seven million people could lose their health insurance in the 34 states that did not establish their own exchanges.

New Hampshire would be one of those states. Kaiser Family Foundation has done a state by state breakdown of the number of Americans who in 2016 could be denied financial assistance to help pay insurance premiums for the plans purchased in the federal exchanges. They estimate 88,072 enrollees in New Hampshire would be adversely affected.

That damage is immense. Not to mention the chaos that would result in the aftermath. I would predict a sizable surge in the ranks of the uninsured, a hefty spike in insurance premiums and a mad scramble in the states to try and minimize the harm.

While expectations of any kind of justice coming from U.S. Supreme Court decisions have largely diminished in recent years, a decision for the plaintiffs in King v Burwell would push things to a whole different level. Never before would a Supreme Court have taken away critically important benefits from millions. That would be a tragedy for the Court, its reputation and for the millions hurt.

King v Burwell can be looked at both from a legal and political perspective. From the legal side, there is a question of statutory interpretation. Lawyers are taught to read any phrase in a statute in the context of the whole text. None other than Justice Scalia has been a strong proponent of judges not engaging in “legislation” under the guise of interpretatation. To quote Scalia:

“No interpretive fault is more common than the failure to follow the whole text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.”

King v Burwell seems a prime example of the fault Scalia identified – reading an isolated section of a statute outside the context of the whole. The plaintiffs are cherry-picking.

Plus, it is unlikely that any state would have chosen the federal marketplace if they had a clue all financial help could be withdrawn. All through the creation of the Affordable Care Act and up until recently, states had no notice that such a result was even a possibility. Penalizing states that opted for the federal marketplace now would be grossly unfair. Are we to believe that Congress intended to hide consequences of opting for a federal marketplace in an isolated phrase?

As a political matter, the case is simply an ideological vehicle driven by wealthy conservative interest groups who have long been looking for a way to take down Obamacare. Since no plaintiff can show any actual harm, the case should be seen for what it is: a sham. The conservative forces who have been hell bent on killing Obamacare have offered and are offering no viable health insurance option for the millions who will be screwed if the Court rules for the plaintiffs. The mission here is purely destructive.

In the aftermath of both Citizens United , the Court’s decision on election campaign contributions,and Shelby County, Alabama v Holder , its ruling on the Voting Rights Act, another awful decision would cement the Court’s reputation as a tool of the extreme right rather than a fair arbiter of law. It is both scary and sad to watch the Supreme Court these days.

Book Review: “The Case Against The Supreme Court” by Erwin Chemerinsky – posted 2/8/2015 and published in the Concord Monitor on 2/22/2015

February 8, 2015 4 comments

A shortened version of this piece appeared in the book review section of the Sunday Concord Monitor on February 22, 2015.

This fine book, written by law professor and constitutional law litigator, Erwin Chemerinsky, presents a balanced but ultimately unsatisfying view of the U.S. Supreme Court. Chemerinsky persuasively argues that the Supreme Court has largely failed as an institution. The Court has acted to protect Big Business and the rich. It has largely failed to protect minorities, workers, and victims of government abuses of power. Maybe its greatest failure has been around addressing racism.

Chemerinsky’s assessment is not just based on the Roberts’ Court. He goes back and surveys the entire history of the Supreme Court. He highlights cases that spotlight a past that is buried in the ancient volumes of United States Reports. He also does make a number of interesting and positive reform proposals.

I like the fact that he takes the Court off its pedestal. He discusses any number of embarrassingly awful decisions released by the Court over its history. These have significantly marked its long history although you rarely hear about them. The Court’s public image has been largely protected and whitewashed. The majesty of its building, the gowned tradition, a servile conventional legal community and legitimate respect for the rule of law have all acted to overly protect the court from criticism. Also, I think the public has only the dimmest awareness of the Court and its history.

In reading the book, I was reminded of a speech I once heard from a very great judge, A.Leon Higginbottom Jr., who was a federal judge on the Third Circuit. Judge Higginbottom died over 15 years ago. As I recall the speech he gave in Concord NH at then Franklin Pierce Law Center now UNH Law, he said that the judges who wrote the Dred Scott decision and Plessy v Ferguson all went to Harvard or Yale. He was not downing those schools. I think he was commenting on the class background of judges, a topic rarely discussed in polite society.

While there is no automatic correlation between class background and voting record, I do not think it is an accident that the Supreme Court is so conservative. Judges as a group come from very elite backgrounds. There are certainly exceptions but generally judges go to fancy schools and they have impeccable professional credentials. Justice Roberts is certainly an example. Many judges tend to see the world from the perspective of the 1%. They are almost invariably pro-Big Business and anti-worker. Too many judges have a Mitt Romney-like view of the 47%.

How many judges on the Supreme Court have ever represented poor and working people? Justice Ginsberg may be the only one on the court now. Even Justice Sotomayor, who was not elite, was a commercial litigator and a prosecutor. I remember a discussion in the book “The Brethren” on this point. Justice Marshall had represented people accused of murder not to mention the many cases he handled where he fearlessly represented minority clients in situations where he was in great personal danger. You do not see that kind of life experience reflected now in people who make it to the Court.

Some of the infamous cases Chemerinsky mentions are well known like Dred Scott where the Court ruled that Congress could not grant citizenship to slaves or their descendants because that would be a taking of property from slaveowners without due process or just compensation. I wanted to mention several others that I did not know about.

Chemerinsky leads off with the case of Buck v Bell, a 1927 case in which the Court upheld the involuntary sterilization of a poor white woman. At age 17, Carrie Buck, a Virginia native, was raped by a nephew. At the time she was living with foster parents because her father had fled and her mother was too poor to care for her. Her foster parents blamed Carrie for the rape. Although Carrie went through the sixth grade and was by all accounts a normal child, her foster parents involuntarily committed her to a state institution. A few months after her child was born, the state of Virginia took her daughter away. Then the state sought to have Carrie surgically sterilized. Virginia had a eugenics law that authorized the involuntary sterilization of those deemed to be of low intelligence.

By an 8-1 vote, the Supreme Court upheld the involuntary sterilization. In an opinion from Justice Oliver Wendell Holmes, the Court wrote that eugenics laws were desirable because they keep the country free from being “swamped with incompetence”. To quote Holmes:

“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad anough to cover cutting the Fallopian tubes. Three generations of imbeciles is enough.”

As Chemerinsky notes, thousands more were surgically sterilized as a result of this utterly classist, repulsive opinion.

In the criminal arena, Chemerinsky tells the story of Thomas Lee Goldstein who spent 24 years in prison for murders he did not commit. Goldstein was an engineering student and a Marine Corps veteran with no criminal record. Chemerinsky writes:

“When Goldstein was tried, there were no eyewitnesses to the murders and there was no confession. There was no physical evidence like DNA linking him to the murder site. The primary evidence against him was the false testimony of a longtime jailhouse informant, Edward Floyd Fink.”

Fink had a long criminal record and he was a heroin addict. He testified he was briefly in a jail cell with Goldstein and he heard Goldstein admit to the murders. Fink had a long history of getting deals from prosecutors in exchange for testifying against other inmates.

The prosecutors withheld from the defense all evidence about Fink’s record of making deals to get his sentences reduced. Fink’s evidence was virtually the only evidence against Goldstein.

After 24 years in prison, the federal court granted Goldstein’s habeas corpus petition. However, when Goldstein attempted to sue the District Attorney in L.A. County claiming violation of his constitutional rights, the U.S. Supreme Court unanimously reversed lower courts and ordered Goldstein’s case dismissed. The Court ruled that prosecutors have absolute immunity from suits for money damages. In spite of all his years in prison, Goldstein was not able to sue the D.A.. He was, however, ultimately successful in settling out of court with the municipality.

The last example I will offer is the case of Hui v Castenada. This is one you probably will not read about in the law books. Francisco Castenada, a legal Salvadoran immigrant was detained in 2005 by U.S. immigration officials for possession of methamphetamines. While he was in custody, he started having health problems. He sought treatment for a lesion on his penis that was growing and frequently bleeding. Castenada repeatedly requested treatment as the lesion was becoming more painful. A lump also developed in Castenada’s groin.

A U.S. public health service physician’s assistant and 3 specialists advocated for Castenada saying he needed a biopsy to determine whether he had cancer. Corrections officials refused the procedure saying it was “elective”. Castenada was given Ibuprofen and an additional ration of boxer shorts.

For another year, his symptoms worsened. His lesion enlarged, emitted a foul odor and leaked pus. Castenada had difficulty urinating. When correction officials finally gave in and allowed a biopsy, doctors diagnosed squamous cell carcinoma of the penis. Castenada subsequently had his penis amputated leaving a two centimeter stump. But that was not the really bad part. His cancer had already metastized all over his body. He died a year after his diagnosis.

Before he died, Castenada brought suit against the Public Health Service, arguing that deliberate indifference to the medical needs of a prisoner was cruel and unusual punishment under the 8th amendment. Although lower courts had allowed this case to go forward, the Supreme Court ordered that the case be dismissed saying Public Health Service officers have absolute immunity too.

The heartlessness of this decision is mindboggling but it is quite consistent with the broader trend toward expansion of immunity for all government officials.

I cite these cases not just to point to the worst moments in Court history. The more recent ones reflect trends. Chemerinsky does a great job in fleshing out development of trends in the Court’s jurisprudence.

Earlier in this piece, I wrote that Chemerinsky ‘s analysis was ultimately unsatisfying. I wrote that because, even with the good reform ideas he proposes, we are still stuck with the same court. I have not even touched on some of their other awful decisions such as voting rights and Citizens United. I do honestly feel a degree of hopelessness about the Court because there are four justices who appear frozen in their right wing ideology. It is very rare for them to deviate from the extreme right agenda. I do not think there is anything that can be done about that. They remain until they leave the Court and are replaced by some future President.

I would concur with the reform ideas proposed by Chemerinsky. These include: changing the confirmation process and 18 year term limits for justices. The confirmation process has devolved into a farce of dishonesty. Chemerinsky mentions Justice Roberts testimony before the Senate Judiciary Committee.

“Judges are like umpires. Umpires don’t make the rules; they apply them. The role of the umpire and a judge is critical. They make sure everybody plays by the rules but it is a limited role. Nobody ever went to a ballgame to see an umpire.”

Please. Roberts was not the only one to mislead ( it was the same for Sotomayor and Kagan) but the transparent falsity of those remarks are so evident. It would be refreshing if we had a process where prospective justices could be honest and forthright about their true views. We have institutionalized a form of dishonesty.

I did want to say that Chemerinsky writes very well. Unlike so many books about the law, the book is readable and clear. Non-lawyers could read it and enjoy it. That is rare because so many lawyers are verbose, boring, and they use mystifying language when they could be simple and direct.

The book is learned and wise. I also think it is courageous. Chemerinsky appears before the Court and he really is calling them out. It is always refreshing to see a writer lay it on the line, speak the truth and take no prisoners. Chemerinsky deserves credit for taking on a sacred cow that has needed debunking. I think his book is in the best tradition of respect for the rule of law.

Categories: Uncategorized

Shady McCoy Baird

February 6, 2015 3 comments

Here are a few pictures of my dog, Shady.





Categories: Uncategorized