Eight Random Thoughts About Harvey, Politics, People, and Law

1.  Lucky people don't have stories, and I was lucky, so I do not have a story of my own.  Our street in West University didn't flood, and water never threatened to enter our home. We had plenty of food.  Our electricity never even flickered.  The extent of my personal suffering was stress from watching the water rise.  Thousands of my friends and neighbors do have stories, though.  Some waded through chest-deep water, with death-grips holding onto their children and pets; some watched everything they owned float away, their most valuable asset inundated and ruined; hundreds climbed onto their roofs, waving white flags at orange helicopters; hundreds more clamored onto flat-bottomed aluminum boats, some operated by professional rescuers, many more piloted by volunteers from around the state and eastern Louisiana.  I have friends whose homes flooded for the third time in three years, and others who, until Harvey, had always stayed dry.  I know some whose upper-story apartments were high above the flood, but still required rescue when water poured into the first and second floors, knocking out power and gas.  I know I said only unlucky people have stories, but here's the thing:  If you ask them, they will say they are lucky too, that all they lost was stuff, that they and their loved ones are healthy and alive, that they are ready to rebuild. 

2.  Five years ago, Hurricane Sandy destroyed a staggering 650,000 homes in New York and New Jersey.  Both US Senators from Texas voted against extending federal aid to Sandy's many victims.  I had friends among those who suffered, and felt shame my fellow Texans and I had sent these two embarrassments to represent us.  This morning I caught a glimpse of one of them, Ted Cruz, talking on TV about how the federal government was here to help.  He resorted to bald-faced lies to explain why, despite all appearances to the contrary, he is not an opportunistic hypocrite; but explanations consisting entirely of alternative facts don't fool us down here; and besides, as we say in the law business, if you're explaining, you're losing.  But I am trying to focus on the bright side, which is this:  Even glib charlatans like Cruz have value. My wife and I have always tried to teach our son you can learn from bad people just the same as you can learn from good people. The latter you emulate, the former you don't. What people like Cruz and Cornyn teach us is that the opposite of empathy is selfishness.

3.  Speaking of selfishness: Even though his megachurch is just a stone's throw from our house, I had never paid a lick of attention to Joel Osteen's supposed theology.  Only after he declined to open his church until being shamed into doing so on social media did I discover that he's the highest-profile contemporary purveyor of the so-called prosperity gospel, the modern incarnation of pure Calvinism which, stripped of its biblical citations, boils down to this idea:  I'm rich and you're not; hence, God must love me more.  So yeah, Houston has people not all of us are proud of.  But we also have Jim McIngvale, AKA Mattress Mack.  If you are too young to remember Crazy Eddie, or didn't live in the area where he advertised, watch this, and you'll know how I felt about Mattress Mack the first time I saw him on TV, assuring me I would save money if I bought my furniture from him.  So while Pastor Osteen was dragging his heels about taking in the homeless and displaced, Mattress Mack was sending his delivery trucks into the floodwaters to bring those same folks back to his store, where they slept on mattresses, sofas, and theater-seating on display in his massive North Houston flagship store.

4.  Like many Houstonians, I have a love-hate relationship with the city.  I hate the traffic.  By September, I hate the heat.  I hate the mosquitos.  As an avid mountain biker, I hate the lack of gradient.  (Yeah, yeah, I know some fervent Houston boosters will remind me of the Ho Chi Minh trails in Memorial Park.  I love Memorial Park.  I suffered actual physical pain when the drought of 2011 destroyed so many of the Park's majestic pines.  But to paraphrase that great Texas Lloyd Bentsen, the trails are definitely not Utah; they're not even Colorado.)   But there is way more to love: I won't talk about the diversity, the museums, the arts, or the food, at the moment, because I really want to focus on the people -- community leaders, elected officials, and just ordinary folks.  You just cannot believe the people.  On Sunday, during a brief lull in the torrential rains, my son got into a kayak and I got on a bike, and we made our way to the edge of Bellaire, a community adjacent to ours.  A normally busy tree-lined boulevard was a river.  I stood on the railroad tracks separating the two neighborhoods, and flagged down pickup trucks as they approached from the east warning them the road was unpassable just ahead.  Driver after driver told me they were just looking to see if anyone needed a ride.  I watched one young man pull his four-wheel drive with a Texas flag in the window and a toolbox in back into the median and wait. From the distance, a shirtless man with two children and a dog approached.  I heard the man tell the kids to be careful of fire ants.  They reached the truck, had a brief conversation with the driver, and climbed into the bed.  A few minutes later the truck returned.  He'd dropped the family at a staging center a couple of miles away where busses were taking people to a refugee center downtown, and come back to offer someone else a hand.   Multiply that guy by a thousand, by ten thousand, and you'll know why people who live here in the nation's fourth largest city often think of it as a small town. 

5.  One of the local TV stations got flooded, but they stayed on the air anyway, reporting which freeways were unpassable (eventually it was pretty much all of them) and broadcasting the location of people awaiting rescue.  The anchors all sat around a table in a makeshift studio, looking like they hadn't slept in three days, probably because they hadn't. 

6.  Speaking of not sleeping, Sylvester Turner, the Democratic mayor, and Ed Emmett, the Republican county judge, proved that what matters when it comes to relief efforts is not political party, but sheer competence, and both coordinated an effort that epitomized competence.  While our Governor was urging nearly 7 million people to evacuate, proving he apparently has no clue what sort of chaos ensued when a mere two and a half million people tried to leave at the same time during Hurricane Rita in 2005, local officials were managing high water rescues and arranging for refugees to be housed at the convention center and in other cities.  (Note to the Governor:  more people died on the road in 2005 than during the storm.)   So yes, the hypocrisy of our Senators embarrasses us, but our local leaders, of all parties, make us proud.  In fact, Mayor Turner and Judge Emmett proved how much of our politics is backwards.  People sometimes talk about shrinking the federal government and giving power to the states.  But, at least when it comes to Texas, that's a doubly bad idea. The federal government has money and people.  Local government has expertise and knowledge of the community.  The unit of government with nothing to offer is the state.  Case in point:  Our legislature just wasted time and money by policing bathrooms and targeting immigrants, rather than fixing the tax and education systems.  If it were possible for the urban areas in Texas to secede we would, and we'd be better off for doing so. 

7.  On the subject of immigrants, I will limit myself to two observations. First, tens of thousands of houses, at least, are going to require major repair. Guess what language you're most likely to hear being spoken by the crews doing the lion's share of the work. Second, we do not yet know how many, if any, of Harvey-related deaths resulted because someone without legal status was too scared to dial 911.  Maybe none of them will, but if there is even a single such fatality, I'd like to see President Trump indicted for murder for emboldening ICE and CBP officials to troll in places where vulnerable people should always be safe. 

8.  When the streets became clear enough for us to get out of our neighborhood, our son, a high school junior who got certified earlier this year as an emergency responder, headed off for his Harris County Medical Reserve Corps assignment, while my wife and I drove over to Lakewood Church.  Bags of clothes were piled fifteen feet high in a circle with a diameter of fifteen or twenty feet.  In Houston, it would pass for a mountain.  Outside, a line of cars snaked forward with people bringing food, medicine, and other supplies.  One group of volunteers carried the donations inside while others sorted the bounty.  I heard English, Spanish, French, German, Hebrew, Arabic, Russian, and another language I couldn't identify.  I saw every shade of human pigmentation.  I took a few pictures and some video.  (You can see them below.  Everybody pictured is a volunteer; the people using Lakewood for shelter were being processed in a different area.  For what it's worth, they too represented every possible racial or ethnic group.)  I'd like to send them to Richard Spencer and the folks who marched with him in Charlottesville earlier this month.  So if you have his email addresses, I'd appreciate it if you'd pass it along.  

  

Why Senate Democrats Have to Filibuster Judge Gorsuch

Let's get three uncontroversial propositions out of the way at the outset.  First, Judge Neil Gorsuch is unquestionably qualified to serve as a Justice on the Supreme Court of the United States.  Second, so is Judge Merrick Garland.  Third, the Senate's refusal to hold hearings and vote on Judge Garland was unprecedented in modern times (by which I mean it has not happened since the mid 19th century).  

Yes, it is possible to draw distinctions between, say, President Reagan's nomination of Anthony Kennedy to the Court and President Obama's nomination of Garland, because Reagan nominated Kennedy in November 1987, which was the calendar year prior to the election, and Obama nominated Garland in March 2016, which was the calendar year of the election.  But if you think that distinction makes a difference, then you might as well take your confirmation bias elsewhere and stop reading now.  

As Amy Howe catalogued over at SCOTUSblog, at least six Supreme Court Justices have been nominated and confirmed in an election year.  Yes, it is true that President Johnson's nomination of Henry Stanbery was not acted on by the Senate -- but that was Andrew Johnson, not Lyndon.  So one must go back to 1866 to find a comparable example to the McConnell-led Senate's treatment of Judge Garland. 

For Democrats to vote on Judge Gorsuch is to concede the legitimacy of the process that denied a hearing and vote to Judge Garland.  They ought to filibuster, not because Gorsuch is unqualified, but because his nomination is illegitimate.  

Several reasons have been offered for not mounting a filibuster.  The first is that twelve Senate Democrats are up for reelection in states that either went or almost went for Donald Trump.   The second is that, with only 48 Senate seats, the Democrats are vulnerable to the so-called nuclear option, by which Republicans could, by simple majority vote, eliminate the filibuster.  

It's hard to know how to respond to the first concern, other than to say that voting to confirm Supreme Court justices is among the most serious responsibilities a US Senator has, so if a Senator makes even that duty subservient to getting reelected then she or he should be the subject of a chapter in a book entitled Profiles in Cowardice.  Put more colloquially, sometimes doing the right thing runs a risk you will get your ass handed to you.  If a Democratic Senator is not willing to do the right thing when the stakes are highest, why should the Democrats want that person to represent them?

If the worry about reelection reflects misbegotten priorities, the concern over the filibuster reflects too simplistic an analysis.  Let's do a little game theory analysis by articulating the four scenarios facing the Senate and seeing where they lead:

Sc1:  If the Democrats do not filibuster, Gorsuch will be confirmed in a straight up or down vote. 

Sc2:  The Democrats mount a filibuster, but the Republicans  eventually pick up eight Democratic votes, and thereby reach the 60 needed for cloture, which will then lead to an up or down vote for Gorsuch, and confirmation.

Sc3:  The Democrats mount a filibuster, and the Republicans do not obtain the 60 votes needed for cloture -- i.e., the filibuster holds -- and the Gorsuch nomination will be defeated.  

Sc4:  The Democrats mount a filibuster, and the Republicans do not obtain the 60 votes needed for cloture -- i.e., the filibuster holds -- but the Republicans then resort to the nuclear option and do away with the filibuster, leading to an up or down vote for Gorsuch, and confirmation.    

Three scenarios lead to confirmation, so the question is whether Sc1 is preferable to Sc2 and Sc4.  It is hard to identify any reason why Sc2 is worse than Sc1.  In both cases, Gorsuch is confirmed; in both cases, the filibuster remains intact.  

Hence, the question for Democrats is whether there is something distinctively worrisome about Sc4.  Put another way, should the Democrats be so fearful of the nuclear option that they simply acquiesce to the unprecedented action of the last Senate to deny a hearing and vote to Judge Garland?  Perhaps there's an argument I am unaware of, but the filibuster-phobia I've seen has been tied either to concern about the electoral consequences on the red-state Democratic Senators, or the worry that if the Republicans trigger the nuclear option, the Democrats will have squandered their most potent weapon.  

The latter concern reminds me of back-country hikers who get lost and die of thirst even though they have water in their camel packs because they are saving it.  At some point, you have to use the resource you have.  There is always a risk you will use it up, and wish later you still had some left, but the opposite risk is just as probable: that you ration and lose the opportunity to use your most effective weapon in the most compelling circumstance.  

It is probably true there are many potential nominees who would prove more anathema to liberals and progressives than Judge Gorsuch.  But that possibility does not justify eschewing Sc4, unless there is a good reason to believe that Sc4 would not be one of the scenarios facing Senate Democrats when that hypothetical future nomination occurs.  If the Republicans decide to blow up the filibuster now, what reason is there to think they would not also decide to blow it up later?  Unless that question can be answered persuasively, the reservation over using the filibuster to oppose Gorsuch turns out to be a reservation over using the filibuster, period.  

I should confess that part of me thinks blowing up the filibuster might not be a bad idea anyway.  It is a profoundly anti-democratic device that massively distorts our political and moral commitment to majoritarianism, and it has been used to do evil as much as to do good.  Besides, Senate majorities are transient things, and a decision by Republicans to blow it up today will one day benefit the Democrats.  The Republicans have been playing the long game for many years, even since before Mitch McConnell announced less than two years into President Obama's first term that the Republicans' top priority was to deny him a second term.  It's long since time for the Democrats to play the same game. 

What it all comes down to is this:  The Republican Party stole a Supreme Court seat that was President Obama's to fill.  A filibuster represents a refusal to acquiesce to that instance of obstructionism.  As a strategic matter, there is no reason not to use it.  And as a moral matter, there is no excuse not to. 

Calling a Moron a Moron


Last week, when a Fox news poll showed 39% of Americans surveyed believed Trump was doing a good or excellent job, I sent a tweet saying two in five Americans are morons. I'm basically a nobody on Twitter. I don't think I have even a thousand followers. So I was taken by surprise at the vehemence of the reaction to my name-calling tweet -- both from people I know, and from people I don't. An actual friend of mine sent me an email saying insulting people is ineffective, and a friend of a friend on Facebook wrote a post saying people aren't morons just because they disagree with me.

That is certainly true. I spend most my time in Texas and Utah, and a lot of time outside urban areas, so I am well aware how many people disagree with me, including many of my friends. In fact, practically everybody I know disagrees with me about something. So I tried to explain to the friend of a Facebook friend my view of what makes someone a moron. I used newly confirmed EPA head Scott Pruitt as an example. Pruitt is a lawyer who wants to shrink the power of the federal government and let states fill the vacuum. Pruitt, I asserted, is a moron, but it's not because he thinks power should be shifted from the federal government to the states for enforcing laws designed to prevent water pollution -- even though that policy view is idiotic; he's a moron because he claims there is meaningful debate in the scientific community about the significance of global warming.

Those who criticized me for saying two out of five Americans are morons did so for two different reasons. One group of critics said name-calling is ineffective; if you are trying to change someone's mind, calling him or her a moron is not likely to work. Call this the practical criticism.

The other group said "moron" is the wrong word. The people who think Trump is doing a good or excellent jobs may be mistaken, or they may be victims of confirmation bias, or they may be bigots. But they aren't morons. Call this the semantic criticism.

The root of the word moron means foolish. It once meant an adult with the intelligence of a child, and has come to mean someone who is a dolt or ignoramus. Is there a better word to describe someone who denies climate change, or who believes there were thousands of Muslims in Brooklyn celebrating the fall of the twin towers on 9/11, or who insists President Obama was not born in the US, or who thinks there is moral equivalence between the US and Russia? There might be other words that are as accurate, perhaps some of them are less pejorative. But all these propositions are false, and anyone who holds to them is a fool, which is to say, a moron.

Now this leaves the question of whether anything is gained by calling foolish people morons. The fallacy of the practical criticism, however, is that it rests on the delusional premise that people who hold moronic beliefs are persuade-able, if only we could identify a less alienating word. Yet that premise is not only false, it is pernicious, because it leads to a catastrophic political strategy.

What the right wing has proved over the past eight years, if nothing else, is that demonization works. It works in two ways: first, by throwing red meat to the base, it keeps them engaged. From Rush Limbaugh's bilious rants to President Trump's incendiary tweets, the goal is not to persuade, but to energize. People voted for Trump not because they agreed with the specifics of his policies -- the only specific he articulated was the wall, and even that specific lacked specifics when it came to explaining how exactly he would get Mexico to pay for it. They voted for him because they hated or distrusted Hillary, and the hate or distrust was nurtured by constant, incessant demonization.

Second, the great historian Edmund S. Morgan explained how slavery survived and coexisted with a political commitment to freedom and liberty because poor whites saw themselves as more like wealthy slave owners than like poor black slaves. Poor white people viewed themselves as white, rather than poor, and therefore allied themselves politically with people who had no interest in their actual economic well-being. Indeed, the roots of white poverty and its persistence are very much tied to the stubbornly held view that poor whites are more like rich whites than they are like poor blacks or hispanics. Demonizing the enemy is a method of cementing alliances between people who have little else in common other than agreeing on who the "others" are. Republicans recognize this phenomenon and execute it masterfully. There is a hard core of racists in America who didn't care that the Republicans were doing nothing to help them economically, as long as those Republicans kept saying no to President Obama, whom they viewed as illegitimate.

One can point to many reasons Trump defeated Clinton, but not a single one of those factors would have mattered if the Democratic base had showed up on November 8th. The second most important goal in politics is to persuade the people in the middle. But the principal objective is to get the people on your side to vote. You do that by firing them up. That's why Trump holds hangar-filled rallies even as the White House is in chaos -- because cultivating the base is a winning strategy. Being nice, being reasonable, trying to tell people they are mistaken but not fools -- things the Democratic Party has been doing for decades -- is a strategy that elevates decorum over results. Some people would rather play nice and lose. Republicans would rather play dirty and win. Given those options, the Republicans have it right. You want results? Then energize the base. You want to energize the base? Then you don't hold back because you are worried about offending the middle. You speak the truth. You say Bannon is a white nationalist; Miller is a Muslim-hater; Trump might be an anti-Semite and he sure seems to be a racist, and he's without question a dangerous and lying narcissist.

And then you say that if you're ok with people like that running the country, then you're never going to vote for the people I'm voting for anyway. That fact alone doesn't make you a moron. But it does liberate me to tell you that you are when you espouse moronic views.