Friday, January 14, 2022

Terry Teachout, b. February 6, 1956; d. January 13, 2022.


Terry Teachout, b. February 6, 1956; d. January 13, 2022. 


I met Terry Teachout at a restaurant in mid-town Manhattan in late 2010.  I do not remember which restaurant. A book of mine had been nominated for an award, and I was there to attend the award lunch. Terry was one of the judges. I had almost cancelled my trip, because my team and I had a client scheduled to be executed the following month.  We had already filed what we intended to file, but I'm superstitious about traveling in the shadow of an execution date. My wife told me I was being ridiculous (an observation she has frequent occasion to articulate), so I went.  Lucky for me. It was the beginning of a dear friendship that, as of yesterday, has ended too soon. 


When I arrived at whatever the restaurant was, my agent and editor were already there, talking to Terry in the foyer.  I walked over and we introduced ourselves.  I had recently finished reading his biography of Louis Armstrong, and I had been a regular reader of his essays in Commentary magazine.  (A post from John Podhoretz, Commentary's editor, reports TT had more essays published in Commentary than any other author.). He wrote about music, theater, literature, and culture.  He was a polymath, yet a modest, down to earth polymath who was at home in Manhattan as he was in one-light towns on the plains.  I do not believe it is only in hindsight that I can say I perceived his humility on that first day we met. 


On that day in 2010, I knew some of his work, but I had never met him, did not know he was a judge, and did not recognize him.  When he held out his thick hand and said his name, I was awestruck. If you've read Pops, or seen his play, Satchmo at the Waldorf, you will probably understand why. I told him I had just finished reading his biography of Armstrong. I sounded like a kid in middle school with a crush, I think, and it only got worse.  I had also recently read his Commentary article on Thelonius Monk.  I loved Monk (and still do), but I thought TT's essay had been unfair to Oscar Peterson.  I do not remember exactly what I said, or what he did in response. What I do know is that conversation about music was the first of dozens we would have over the next decade.  We talked too about movies, novels, and politics, but never theater, as I've never been much of a theater-goer. 


But that did not stop my wife, son, and me from seeing Satchmo when it was produced at Houston's Alley theater.  I sent him a message saying how much we enjoyed it, and how impressed we were by Jerome Bates, who played Armstrong. That brief observation was all Terry needed to write two paragraphs about how amazing Bates was.  He was an expert at pivoting a conversation about him to the subject of his writing. 


Terry came to Houston to direct the premier.  It was his directorial debut.  By that time, his wife Hilary, whose years-long battle with pulmonary hypertension Terry wrote about on his blog,  was too sick to travel, so Terry was in Houston solo. We had Tex-Mex food at El Tiempo, and Mexican food at Hugo's.  (He did not distinguish, as best I could discern, between fancy food and plain, but between a good meal and not.  He once sent me a note about a bag of hamburgers he had savored in his Manhattan apartment.)


When his biography of Duke Ellington was published a few years ago, he was in Texas again to promote it at the annual Texas Book Festival.  I drove to Austin so we could visit.  He wanted to go to breakfast and so I asked him the essential question when one goes to breakfast in Texas:  American or Mexican?  He couldn't decide, so we went to the Magnolia Cafe. This was back in the day when most Austin restaurants still started diners off with a basket of chips and a bowl of salsa -- in other words, it was in the dying days of when Austin really was still weird, before it had lost its essential character had become another example of unaffordable urban sprawl.   (You can read Evan Mintz's take on that tragedy here.)  Terry handed me a signed copy of Duke. He then handed me bound galleys of a book of mine scheduled to be published in the coming months.  I had asked him to read it and write a blurb if he was so inclined.  It was perfectly on brand: a nod to himself, and then a shift to another topic. In that blurb he had written:  "Sooner or later, death touches every life. Sometimes, though, it comes in legions."


Terry and his wife Hilary thought they had finally won.  She needed a double lung transplant, and she managed to live long enough to get to the top of the list.  She went into the hospital at the dawn of the pandemic, got her two new lungs, and died days later without ever leaving intensive care.  Like many of Terry's friends, I was worried he would not last long, because if it is possible to die of a broken heart, Terry's life was in danger.  I began to check in with him much more frequently than I had before. 


And then, the day after my birthday, in the summer of 2021, I got a message from Terry that began:  "I have wonderful news, David:  I'm crazy in love."  He had met Cheril. The list of adjectives he used in that very long message describing her seemed to have no end.  She is, he wrote, beautiful and "EXTREMELY smart."  I stopped worrying.  He was in love, and he was saved. 


Less than six months after he sent me that text, he died.  NPR described him as "one of the great cultural critics of the past half-century." I think that is true.  He was also one of the greatest friends a human being could have.  He was sixty-five years old. 

Monday, June 14, 2021

In Memoriam, Ronald Turner. 


Last night I had a dream about my friend Ron Turner.  A small group of us had gathered at his condo.  We might have been celebrating the publication of his new book, because he was opening a box and removing author copies the publisher had sent him.  He had a famous co-author, but I don't know who it might have been. 


Ron sounded just like himself, but I knew it was a dream, because Ron is dead. 


I had just arrived in Iceland on Friday, June 4th, and was walking around a bookstore in downtown Reykjavik with my wife and son after having breakfast, when I got a text from our friend Meredith Duncan, telling me Ron had passed away. 


He was a man of extraordinary accomplishment.  As the University of Houston Law Center's statement notes, the list included being the first black full professor in UHLC's history. He was also a loving son, a dedicated brother, and a devoted father.  Many of his students adored him.  All of his students admired him.  All of his colleagues respected him.


To me, though, what is most important about him is that he was one of my dearest friends. 


I believe I was his oldest friend in Houston, because I was one of four people who had dinner with him when he first came to town for a job interview.  UHLC was trying to recruit him away from Alabama.  I do not remember where we ate, but I remember we talked about books.  I had recently finished reading The Professor and the Madman, and discovered at that dinner Ron had read it too.  I believe we also shared our admiration for Cold Mountain, Charles Frazier's award-winning novel set during the Civil War.  But I'm not certain.  We might have had that conversation some other time.


He was a voracious reader.  But unlike me, he seemed to retain every word he read.  The last two books we talked about were The Zealot and the Emancipator, a book about Lincoln and John Brown, and Lincoln on the Verge, a book about Lincoln's train trip to Washington from Illinois, after he was first elected


When I say we talked about those books, I mean we texted about them. Ron lived alone.  His daughter lives in Chicago.  His sisters live out of town.  His mother died from covid (one of the many whose loved ones could not be with them at the end). 


When he died, I had not seen him in over a year. 


The last time I heard his voice was October of last year.  We talked about one of our colleagues who was going up for promotion. We both supported her, and Ron wanted to know what he could do to help. 


He was like that: always looking to help.  He read the manuscripts for each of my books, and had useful suggestions for e very one.  A day after I gave him a draft of Things I've Learned from Dying, he stuck his head in my office and said, I talk to dead people. 


He was quoting me.  I wrote that on page 159.  I talk there about a conversation I had with my colleague Gilbet Finnell, six years after Gil passed away. 


Right now, I feel like I'm talking to Ron. 


I cannot tell you precisely when he died.  His daughter had grown alarmed that he was not returning her texts or her calls.  She contacted police.  They arrived at his condo to find packages piled up at the door.  They went inside and found him. 


He had a terrible habit: He'd doggedly support everyone he cared about, but he mostly refused to ask for help for himself.  Only once in the nearly quarter century I knew him did he ask me for a favor.  Several years ago, a mutual friend of ours was battling an addiction.  Ron and I forcibly took him to a rehab facility.  After we left out friend there, we went back to a grocery store parking lot where our friend had left his car.  We drove up and down the aisles clicking the remote control's unlock button, searching for the car.  It seemed like an appropriate moment to raise the issue.  I said to Ron, You shouldn't think it's an imposition to ask for help when you need it.  You don't think it's an imposition to be here right now, do you?


He said, Yeah, you're right.   


We didn't talk only about books and TV.  We also talked about music (Ron and I both play piano, but unlike me, he played well).  We talked about politics and movies and poker. We'd gossip about colleagues.  We'd go out for drinks and discuss our plans to do a podcast, where we planned to free associate about whatever legal issues grabbed our attention.  Most of the time, they had to do with the First Amendment.  I told him we could hash out the episodes the following summer in the mountains. 


Ron, along with the Duncans (Meredith, Curtis, and their boys (now young men), Graham and Shaeffer) would come visit my wife (Katya) and our son (Lincoln) and me in the mountains, and we'd go for walks before dinner.  I told him I knew that he complained behind my back about my referring to these strolls as "short walks."  He laughed and said, Yeah, I told Meredith I disagree with your characterization. 


He and the Duncans and our friend David Jones and our former colleague (and now Dean at Oregon) Marcilynn Burke, and occasionally another guest, would gather every month or so at our house, and we'd eat pizza and drink and eat whatever Meredith made for dessert and play a friendly game of poker and, most of the time, make each other laugh.


Even before covid, we both binge-watched TV. He turned me on to The Killing, (which some people wrongly consider a knock-off of Twin Peaks). In one episode, a guy says to Holder, You know you're not black, right?


Or something like that. Ron loved that line. 


Last summer I sent him a list of shows to watch, including Casa de Papel and Fleabag.  Two days later he texted back.  It read:  "Fleabag. Wow."


In December he got sick.  He stopped responding to my texts and phone calls.  Meredith and I went around and around in January about how aggressive to be in reaching out to him.  His mom had already died from covid the preceding summer, and his sister had also fallen ill, and I was torn between wanting to be supportive, and not wanting to be intrusive.  But then in February a dear friend of my wife (named Belle) committed suicide, and that decided it for me.  I texted Ron and told him about Belle, and that the lesson I was drawing was to hound him.  I threatened to show up at his door and knock until he answered.  He wrote back right away. He gave me the details about his heart issues and hospital stay but assured me he was on the mend.  He reminded me to let Meredith know he was back at home and recovering, because, of course, he was Ron, which meant assuring his friends he was ok, even if he wasn't.


The last book we didn't talk about was Charles Blow's The Devil You Know, a book I found both very smart and very infuriating.  I texted him in early May. I wanted to know what Ron thought about it. He texted back that he had read about fifty pages and put it down. He was just too tired. The same text said he believed his doctors were finally getting a handle on his heart issues.  I told him I knew doctors he could consult for a second opinion.  He said thanks.    


When Meredith texted me the news my knees buckled.  From across the room my wife looked at me and said, What's wrong? 


Certain losses are nearly unbearably big. 


Ron was too private a person for me to feel comfortable saying much about the circumstances of his life.  So I'll leave it at this: He did not come from privilege.  His father was not his role model.  Through talent and grit, he made himself into a scholar, a teacher, and a role model.  He was as fair and decent a human being as our species has to offer.    


I wonder what became of those packages the police found piled at Ron's door.  I wonder who might have them.  I wonder what they held.  I can't say for sure, of course, but I'd bet almost anything they mostly held books. 


Sunday, May 24, 2020

Covid-19, PVW-15, and UCC2-712


I drink bourbon.  I've got my favorites (at the moment, the daily bourbon is Rowan Creek; the special occasion bourbon, subject to the final paragraph of this essay, is cask strength Angel's Envy), but I also try several new ones a year. 


In 2002 I bought a bottle of 15-year-old Pappy Van Winkle.  (I'm writing this essay many years after the fact; my memories of dates and prices might therefore be mistaken in some of the details.) I hadn't had it before, and it wasn't yet the thing.  I bought it because a bartender I used to play poker with predicted I'd like it.  He was right.  Of the 75 or 80 bourbons I'd taste-tested by then, it was easily the best.  PVW-15 was hard to find, but not impossible, and at that time (as best I recall), it sold for around $50 / bottle. 


Within the next couple of years, it became it.  And as PVW became increasingly popular, it became increasingly hard to find, and of course, because it was it, as it became increasingly hard to find, it also became ever more popular.  Yet it was still possible to find a bottle on the shelf, and the price was still not crazy, well south of $100 a bottle. 


In August of 2005, my wife, son, dog, and I were renting a small condo in Aspen. I walked across town to Carl's pharmacy, which is also (oddly) a liquor store.  There were two bottles of PVW-15 on the shelf.  I asked the owner, Carl (obviously), if there was any more in back.  He came out with a case.  I bought all his stock.  As I was paying, he asked what was so special about the bourbon.  I pointed at a couple of lowball glasses on the shelf behind him (yes, they sold those too) and said, May I?  He said sure.  I opened a bottle and poured us a couple of shots.  He said he should have saved a bottle for himself. 


Within a year or so, the craze reached a solid eleven on the Spinal Tap dial.  You just could not find the stuff.  Friends of mine knew to call me if they ever happened to come across a bottle, and I would jump in my car and drive over to buy a bottle or two.  But such sightings were increasingly rare.  I took to scouring liquor store inventories online, hoping I'd spy a new shipment and be in the bourbon aisle when it arrived at the store. 


Then it happened.  I returned to my office after teaching a class on the Supreme Court's decision in Randall v. Sorrell, a mess of a decision striking down a Vermont law regulating campaign contributions.  I went to the website of my go-to liquor store, and there it was.  I clicked on PVW-15 and bought a case, entering my credit card information and pickup time.  I printed out the page with my confirmation and headed to the store. 


When I showed up and presented my confirmation and ID, the person behind the counter told me I would have to wait a moment, then she picked up her phone and made a call.  Three minutes later, the liquor department manager appeared.  The following transcript is not verbatim, but it is, to the best of my recollection, the gist of our conversation:


Me:  I am here to pic up my case of 15-year-old pappy. 


Him (an arrogant pinhead named Bert):  I am not going to sell you a case. 


Me:  I am not asking you to sell me a case.  I already bought a case.  I am here to pick it up. 


APB:  I am not going to sell it to you.  I save that bourbon for my best customers, bars and restaurants.  You are not my best customer.  I do not even know you.


Me:  I admire your loyalty.  I myself prize loyalty as among the most important human qualities.  But possibly you didn't understand what I said.  I said I already bought it.  The confirmation number for my amex charge, which went through two hours ago, is [XXXXX].  I am here to pick it up. 


APB:  I understood what you said.  You might not have understood me.  But I tell you what, I will give you a bottle and refund the charge.


Me:  I bought a case. 


APB:  You can have two bottles, or leave with nothing. 


Not that this matters. It shouldn't. A liquor store manager should not treat someone who wears a three-piece suit and a tie more respectfully than he treats a guy wearing blue jeans, a white t-shirt, a black hoodie, and boots.  But it happens.  And as a guy who teaches law school but doesn't wear three-piece suits, I have first-hand experience in this regard. So I took my two bottles, drove straight back to my office, sat down at my desk, and wrote an email to the store's general manager. Again, the following is not verbatim, but I believe it is reasonably close to what I sent:

Dear general manager:

My name is David R. Dow.  I am a professor at the University of Houston     Law    Center, a fact I mention solely so you or your counsel can evaluate the accuracy of what I am about to tell you.  In this email, I am speaking solely for myself, not for the Law Center.

This morning I purchased a 12-bottle case of 15-year old Pappy Van Winkle on your website.  I provided my credit card information and received a confirmation. If your website represented an offer, I accepted your offer to purchase one case.  If my filling out the form for a case was the offer, you accepted when you charged my credit card. In either case, a contract for sale was formed. 

When I arrived at your store to pick up the case, your liquor store manager    refused to give it to me. This refusal represents breach of contract. 

Under section 712 of the Texas Business and Commerce Code, in view of     your nondelivery of the bourbon, I, as the purchaser, am entitled to cover.  This means I may purchase from another seller the goods (i.e., the bourbon) you were obligated to give me. 

I am writing to let you know i intend to cover by the close of business today.  Pursuant to section 712(b), you will be liable for the difference   between the contract price (i.e., the price i agreed to pay you [approx   $80/bottle, as I recall]) and the market price (i.e., the price I pay in good faith to obtain the identical product from another seller), as well as any  incidental damages I might incur. I will contact you to let you know what     you owe me as damages as soon as I have effected cover. 


David R. Dow


At the time, the online trading price for PVW-15 was about twice what I had paid. 


Thirty seconds after I sent the email, my phone rang.  The general manager apologized for the miscommunication and told me my bourbon was ready for pick up. 


Back at the store, I noticed APB was a bit cool toward me as wheeled the basket holding my case to the checkout register.  He did not offer to carry it out and load the case into the back of my truck. He did not offer to shake my hand.  I wished him a pleasant afternoon.


Within the next several months, the supply of PVW-15 dried up, and as the supply dried up, the price went nuts.  A hundred bucks a bottle, then two, then three.  It kept going, and as it did, I stopped drinking it.  I had to.  Drinking my own stock was like drinking diamonds. Today, an empty bottle will cost you more than $100. A full bottle will cost you at least $2000, and I've seen it selling for as much as three.  (Click here to see some representative prices.) My remaining unopened ten bottles could just about buy me a new Tesla series 3 sedan. 


I hid the bottles.  I was not worried about somebody stealing them.  Delano and Soul, a hundred and fifty pounds of dog, would not allow that to happen.  I hid the PVW so I did not have to see the bottles in the evening when I fixed my wife and myself a drink. 


And so for a decade it went, until finally, just last month, on the very day Harris County Judge Lena Hidalgo was issuing a stay-at-home directive. As we sat down to dinner, I looked at my wife, who prefers Tequila, and at our son, who doesn't drink, and said, I don't even want a Tesla.  They looked at me, as they sometimes do, with an expression that translates roughly as What the hell are you talking about?  I got up, and returned with a glass holding two fingers of PVW-15 and said, This is what I am talking about.  And since that evening, every Saturday, at the cocktail hour or even a bit before, I pour myself two fingers (or sometimes three) of PVW-15 and give thanks for another week. 


If there is a lesson here amidst the many daily tragedies of the pandemic -- a lesson about being grateful for every day, grateful for your family, your friends, and your dogs -- you don't need me to spell it out for you. The lesson I do want to stress is that thanks to a bunch of crackpots willing to pay obscene sums for a bottle of a sour mash whiskey, there is a present or former liquor store manager who, if he is safe and healthy (and I very much hope he is), can tell you exactly what a buyer's remedy for breach under the uniform commercial code happens to be.

Wednesday, August 30, 2017

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.  


Wednesday, February 22, 2017

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.