President Bush's first list of nominees to the US Circuit Courts of Appeal, unveiled on May 8, was deceptively conciliatory and seeded with hard-to-oppose minorities and women, stealth conservatives and even a Clinton holdover, Roger Gregory, who has been sitting temporarily on the Fourth Circuit during the stalled appointments process. Gregory, a black lawyer, was a bone tossed to the left, but Bush's list contains enough red-meat conservatives to please his loyal base. Republicans already control eight of the thirteen courts of appeal and could dominate three more if Bush is permitted to fill even some of the current thirty-one vacancies. On the Fourth Circuit, where Republican judges now hold a 7-to-6 majority, and the Fifth, where they maintain a 9-to-5 edge, there are five and three vacancies, respectively.
For the Fourth Circuit, the farthest right of them all, Bush named two judges who should have no problem fitting in. Terrence William Boyle, a federal district judge in North Carolina and former aide to Jesse Helms, is so off the charts that in a recent voting rights case, Hunt v. Cromartie, the Supreme Court slapped him down two times in a row for ruling in favor of white voters trying to weaken black Congressional districts. The other Fourth Circuit nominee, Dennis Shedd, a federal judge in South Carolina, was a top aide to Senator Strom Thurmond. Both men have the support of Jesse Helms, who blocked all Clinton's North Carolina nominees to the Fourth Circuit on the ground that it didn't need any more judges. On the contrary, as a result of Republican obstructionism the federal courts have 100 vacancies and a backlog of 50,000 civil and 48,000 criminal cases at the district level. Now the brakes are off, and the GOP is rushing to pack the Fourth Circuit so it will remain a conservative bastion for years to come.
Two other Bush first-round nominees to the District of Columbia Circuit Court, Miguel Estrada and John Roberts, could shore up the GOP dominance of that body. Estrada is a Honduran immigrant who attended Harvard Law School. At age 39 he'll sit on a circuit with a tradition of promotion to the Supreme Court. Now a partner at Gibson, Dunn & Crutcher, he has left few footprints on the public record, but he's considered an Antonin Scalia clone. Roberts, a Washington lawyer, represents Toyota in a case challenging the Americans With Disabilities Act.
Among the women on Bush's list, Edith Clement, a federal judge in Louisiana and a member of the conservative Federalist Society, will add little diversity to the conservative Fifth Circuit. Defense lawyers consider her a hanging judge who always sides with prosecutors. And she has a record of "judicial junketeering"--accepting trips from conservative foundations and corporations that purvey a free-market economic philosophy.
For the Sixth Circuit, Bush nominated Jeffrey Sutton, also an active member of the Federalist Society, whose influence permeates the Administration's panel of judge-pickers. Sutton is a leader in the states' rights campaign and successfully argued a recent Supreme Court case that took away the right of disabled workers to sue state governments for discrimination.
The religious right will have a friend on the Tenth Circuit bench if the nomination of Michael McConnell, a University of Chicago-trained professor at the University of Utah College of Law, goes through. McConnell has argued pro-school prayer briefs before the Supreme Court and is antichoice.
The circuit courts are a crucial battleground in the Administration strategy of entrenching conservative policies in this country. As the Rehnquist Court steadily pares its docket--last year it issued only seventy-four signed opinions, compared with 107 in 1991-92--the circuit courts have become mini-Supremes, final arbiters on many important, enduring issues in their districts. Take the Fifth Circuit's drastic restriction of affirmative action in Hopwood v. Texas. The Supreme Court declined review, so that case is now the law in the three states (Texas, Louisiana and Mississippi) that make up the Fifth Circuit. The High Court also let stand the Sixth Circuit's decision in Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, which effectively ignored the Court's holding, in Romer v. Evans, that gays and lesbians may not be excluded from the protection of antidiscrimination laws. Greenville Women's Clinic v. Bryant, in which the Fourth Circuit upheld onerous state licensing requirements--which apply to no other physicians--for abortion providers, still stands.
Much has been made of the need for ideological balance on the Supreme Court, but the argument applies with equal force to the federal circuit courts. Democratic senators should not just play blue-slip politics--vetoing nominees from their state whom they oppose--they should insist on hearings to review the state of the appellate judiciary circuit by circuit. The goal should be an intellectually distinguished bench and, at least, an ideologically balanced one. Nominees should be approved or rejected in this context. Democrats must also demand a full-blown, in-depth examination of each nominee's record (if this is "Borking," make the most of it). Only those candidates should be confirmed who have demonstrated a commitment to protecting the rights of ordinary Americans against powerful institutions, whether government or private, and to our national ideal of civil rights, women's rights and individual liberties; who respect Congress's power to legislate to protect the health and safety of workers, preserve the environment and enforce antitrust law.
Republicans are already crying obstructionism, cynically ignoring their own blockade of centrist Clinton nominees. With the Administration's intentions now on the table, those who will be hurt most by them--minorities, women, working people, the elderly, environmentalists--should launch a missive attack on Senate minority leader Tom Daschle and the nine Judiciary Committee Democrats (who if they stay united have the power to thwart Bush's court-packing scheme) telling them to stand firm. (For information on what you can do, go to www.thenation.com.)
If all goes as the GOP has planned, George W. Bush will have on his desk by Memorial Day a $1.35 trillion tax bill that is wrongheaded and an utterly inequitable pander to the privileged. Every American should be clear about what this bill is: a blueprint that will define the political and social landscape we live in for decades to come. The immense tax cuts will not only disproportionately benefit the wealthy and increase the widening gap between rich and poor, they will also severely circumscribe the government's capacity to help improve the lives of all Americans. (As if to prove the point, the Senate Finance Committee voted out this tax giveaway the same day the Senate voted against increased funding for teachers to help reduce class size.) This downsizing--indeed, emaciation--of government is of course exactly what the right is aiming for. Grover Norquist, "field marshal" of the Bush tax plan, was quoted recently in these pages saying that his goal is "to cut government in half...to get it down to the size where we can drown it in the bathtub."
Under the plan, the 400 richest multimillionaires will receive tax breaks worth an average of $1 million a year. The poorest working families will get zip, even as the nation faces a growing investment deficit measured in children without healthcare, families without housing, overcrowded airports and neglected alternative energy and conservation. Senate "moderates" claim they improved the bill, which is true. Under the original Bush plan, 26 million children in low- and moderate-income families would get no benefit from the tax plan. Under the modified bill, that drops to 10.6 million. The $58 billion a year handed to the wealthiest 1 percent could be used to lift another 2 million children out of poverty, provide health insurance to 5.1 million uninsured children, fund universal preschool and expand childcare services to more than 9 million children--two-thirds of those eligible.
Besides being unfair, the bill, which stretches the cuts over eleven years rather than Bush's original ten, is dishonest--in reality a stealth raid on the Treasury. The Senate earlier voted to cut the Bush tax plan by 25 percent. To meet this, the Finance Committee simply backloaded the bill even more than originally planned--phasing in the full tax cuts later so they don't count under the ten-year limit used to estimate its costs. The $1.35 trillion giveaway balloons to $4.2 trillion in the next decade, after all the provisions kick in. It also calls for ending popular tax breaks in a few years--like the tax credit for research and development--in the confidence that no future Congress would choose to do so. Plus the bill is designed so that 40 million taxpayers will eventually be subject to the Alternative Minimum Tax, insuring changes that will add dramatically to the total cost. And the Republican Congress is just warming up: Even now the K Street lobbyists are cooking up ways to lard a minimum-wage-increase bill with fat corporate tax cuts.
Bush has peddled this tax cut as the elixir for a good economy and a bad one, for rising gas prices and declining stock prices, for small businesses and waitress moms. The repeal of the estate tax is shamelessly presented as a way to save family farmers, even though advocates cannot locate one farm that has actually been lost because of the tax. It's all hype, lies and distortion.
Remember--in 2002 and beyond--those responsible, from Bush to the Republican majority that marched lockstep in support, to the handful of Democratic renegades who provided the margin. They must be held accountable for this travesty.
"Let me take you on a journey to a foreign land. To Britain after a second term of Tony Blair." With these words, Conservative Party leader William Hague began a speech in March that has helped to reignite one of the ugliest political debates over race that Britain has seen since the 1970s. Hague insists that the speech had nothing to do with race or immigration, but many observers here see it as a subtle but calculated attempt to appeal to the worst instincts of the "worst sort of Tory."
About a week after Hague's speech, the leaders of all major parties (Hague included) signed a statement sponsored by the Commission for Racial Equality promising that they would not play the race card during the general election. The statement was then circulated to all MPs. Three Tory backbenchers refused to sign it, citing freedom-of-speech concerns. Among them was John Townend, who claimed that immigration was threatening Britain's "Anglo-Saxon society." Hague condemned Townend's remarks but refused to sack him, arguing that to do so would be a hollow gesture only days before the dissolution of Parliament. Many senior Tories are furious with what they perceive as Hague's lack of leadership. The most vocal has been Lord Taylor of Warwick, the most prominent black Conservative, who is now threatening to leave the party.
The race-pledge row is only the latest episode in a year of worsening race relations, in which an increasingly xenophobic "Little England" note has been struck by parts of the country's tabloid press, exploited by the Conservatives and worsened by the Labour government's apparent unwillingness to take a strong stand against it. The ugliness began last spring when Hague, responding to claims by some tabloids that Britain was being besieged by a tide of "bogus asylum-seekers" and illegal immigrants, delivered a speech excoriating the Labour government for allowing Britain to become "the biggest soft touch in the world" and for not doing enough to stem the "flood" of opportunistic refugees. His remarks were not only insulting but also poorly timed, coming less than a year after the release of the MacPherson report on the murder of a black teenager. (That report concluded that Britain's police were "institutionally racist" and called for tough action against indirect racism in public institutions.) The Daily Mail, the flagship tabloid of "middle England" and self-styled enemy of political correctness, hailed Hague's speech, calling it, "in this insidious climate of racial McCarthyism, courageous."
To its credit, the Labour government criticized the use of the word "flood" as being inflammatory, but did little else. Determined not to give the Tories an issue to run on, New Labour avoided pointing out the obvious--that Britain has some of the toughest immigration policies in Europe; that the 78,000 people who sought asylum here in 2000 were overwhelmingly law-abiding individuals desperate to escape persecution; that the cost of providing basic food, clothing and shelter to them was minuscule (a controversial voucher scheme provides a meager £35 (about $50) a week for food and clothing, and housing is often substandard); and, most of all, that immigration is a healthy thing for a modern, open society.
Instead, the government seemed eager to be seen as "getting tough" on asylum fraud, and more concerned with not losing the treasured support of the middle-income suburbanites who had been so crucial to its electoral success in 1997. One of the most controversial provisions of the insidious Asylum and Immigration Act, introduced soon after Hague's speech, was a policy of enforced dispersal of asylum claimants. Home Secretary Jack Straw argued, perversely, that the measure would protect asylum-seekers from the resentment that would inevitably occur if they were allowed to concentrate in large numbers in particular areas. Nothing could have been further from the truth. Until the dispersal policy was introduced, 90 percent of asylum-seekers lived in heavily multicultural London, where they fit into established communities of people from their native countries. Now, immediately on arrival, they were being packed off to places like Dover, with its 99.4 percent white population. A Dover Express editorial moaned about having to receive "the backdraft of a nation's human sewage." Within a short time, the debate between Labour and Conservatives over the asylum issue had become so ugly that the third-party Liberal Democrats' Home Affairs spokesman, Simon Hughes, called on the Commission for Racial Equality to carry out an investigation into whether the two main parties were inciting racism, and even the UN High Commissioner for Refugees stepped in to condemn the tone of the debate.
But the Conservatives had a surprise in store at their autumn conference. Unbeknownst to many, Hague had spent a few days with the Bush campaign, taking furious notes, and he returned all aflutter with ideas for how to "modernize" the Tory party. "Caring conservatism" and "working families" became buzzwords at the conference, as Hague told the party faithful that he wanted more ethnic minorities to be placed on short lists for parliamentary seats. The Tories' true colors soon showed through, however, after a black 10-year-old, Damilola Taylor, was apparently murdered walking home from school in late November. The police, keen to show the lessons they had learned from the MacPhersonreport, tripped over themselves to appear cooperative and respectful to the bereaved family. Only two weeks later, though, Hague drew a specious link between the report and the boy's death, encouraging police to rebel against "politically correct race awareness courses" and spend more time fighting crime.
Straw, meanwhile, still insists on peddling the myth that the Labour government is one of the most aggressively antiracist ever. True, a new Race Relations Act, which just went into effect, widens previous antidiscrimination legislation to cover police activities, and true, Straw's Tory shadow, Ann Widdecombe, who recently proposed that all asylum-seekers be locked up in "secure detention centers," gives pause to anyone thinking about changing his vote. But the reluctance of the Labour government to take a firm, principled stand has left a scar on the lives of black Britons that is likely to remain, and likely to hurt Labour at the polls. Hughes told me recently, "We now have significant support from the black and Asian communities, more than we've ever had before."
The real effects, of course, are felt most acutely in the lives of people far removed from the hurly-burly of Westminster politics. Britain, for all its problems, is probably one of the least racist countries in Europe, but racially motivated crimes have risen steeply: March saw a threefold increase in reports of racial harassment in London, while race crimes in Britain as a whole were up 107 percent in 2000. A Reader's Digest/MORI poll reports that 66 percent of the public now think that there are too many immigrants in Britain, up from 55 percent a year ago. Many of Labour's black supporters blame Labour more than the Tories for the backlash. Among them is Bill Morris, head of the Transport and General Workers Union, who argues that "by heralding measure after measure to stop people entering Britain, the Home Office has given life to the racists."
The limits of New Labour's commitment to racial equality became clearer than ever when it emerged that ten of its twelve new black and Asian candidates are standing for election in what the party admits are "hopelessly" safe Tory seats, including John Major's seat in Huntingdon. This from a Prime Minister who came to power in 1997 pledging to increase the number of black and Asian MPs "to reflect the makeup of Britain." If this is Blair's idea of Britain, then William Hague's "foreign land" will surely be a long time in coming.
There is probably no punishment more painful to Timothy McVeigh than the great joke just played by the cosmos. In his fantasy life McVeigh has fancied himself a sort of stoic samurai, avenging himself on the FBI for Waco and then committing hara-kiri by halting appeals. In one letter McVeigh referred to his impending execution as a version of "suicide by cop"; he has planned as his last words William Henley's war horse "Invictus": "I am the master of my fate/I am the captain of my soul." It's taken another spectacular FBI blunder to puncture McVeigh's grand delusion. Now Attorney General Ashcroft promises that McVeigh will be executed in Terre Haute on June 11 come hell or high water, but don't bet on it. McVeigh's game is to control his story by any means possible, and he may still play the only Invictus card left in his deck by initiating the appeals he previously rejected.
In the weeks leading up to the May 16 execution date, pundits predicted that McVeigh's execution would restore popular confidence in capital punishment. Instead, we have gotten a national teach-in on one of the defining evils of capital trials: the fallibility and corruption of law enforcement. If the FBI can "misplace" a cache of documents in the most notorious death-penalty case since the Rosenbergs, is it any wonder that nearly 100 factually innocent people have ended up on death row in recent years?
While McVeigh's case has in many ways been historically unique, in this respect it is typical. Back-drawer evidence is part of the everyday landscape of capital punishment in America. According to Columbia University professor James Liebman's remarkable study "A Broken System" (available online at justice.policy.net/jpreport), vital suppressed evidence has led to dismissal of one in five capital cases since 1973. (More than half of capital cases, Liebman found, are dismissed or retried for "grave constitutional error.") When it comes to capital punishment, the last-minute "oops" is the norm, not the exception. That so many executions go ahead anyway is only because of the current Supreme Court's cavalier attitude toward evidence discovered after a death sentence is pronounced. Justice Rehnquist complains of the "enormous burden that having to retry cases based on stale evidence" would demand.
Why did President Bush and Attorney General Ashcroft delay McVeigh's execution? To "protect the integrity of our system of justice," in Ashcroft's words, which he defined as "a more important duty than any single case." In other words, official malfeasance, undisclosed evidence and public uncertainty all demanded a timeout. Fair enough.
In reality, though, in capital cases "the integrity of the system of justice" is already nonexistent. Just since January, judges in Louisiana, Texas, New York and Massachusetts have ordered the freeing of two innocent death-row inmates and four innocent lifers--their stories full of coerced confessions, doctored documents and suppressed evidence. Consider Ronnie Burrell, released from Louisiana's Angola State Penitentiary in January, who came within two weeks of execution in 1996 for a murder he didn't commit. He had been arrested by a small-town sheriff trying to distract attention from his own corruption and was convicted on the purchased testimony of a career con man. All this came out only because his appeal was taken up by a Minnesota corporate lawyer in search of pro bono work who had a family connection to Louisiana.
Unlike Burrell, McVeigh's factual guilt is not in doubt (although the bomber's degree of culpability and mental state could yet form the basis for appeals of his death sentence). If the FBI's suppression of documents in his case, intentional or not, justifies a timeout, what about the rampant errors in dozens of frame-ups like Burrell's? Doesn't the systemic accumulated record of lost evidence, law-enforcement misconduct and outright factual innocence demand a timeout on all executions? In the final irony of the McVeigh case, which so often has managed to pull the system inside out, George W. Bush and John Ashcroft have now offered one of the best arguments yet for a national death-penalty moratorium.
The recent New York Times front-page headline "Scientists Say Gay Change Is Possible" left me somewhat bemused.
We are, as a nation, about to experience the changing of two guards. First, Ira Glasser, having given a year's notice, is stepping down after nearly a quarter-century as executive director of the American Civil Liberties Union, "Liberty's Law Firm" as they like to call it. Second, Louis Freeh is leaving the FBI after serving eight years of a ten-year term as director.
There is, of course, a built-in tension between an organization dedicated to protecting and expanding rights, like the ACLU, and an institution like the FBI, too often bent on invading them. Thus when Director Freeh began agitating for the Communications Assistance to Law Enforcement Act, providing for the placement of surveillance-friendly equipment in all new telephones, it was Glasser who pointed out that it was like requiring builders to put microphones in buildings to make it easier for the cops to listen in.
Despite occasional differences over this and that, we will miss Ira's energetic and articulate defense of free-speech values, his "First Amendment absolutism," his stewardship of an organization dedicated to eternal verities in a postmodernist culture.
Freeh is a more problematic proposition. He came to the FBI after the bureau's assault in April 1993 on the Branch Davidian compound in Waco, Texas, and he never fully cleared that air. His public laundering of differences with President Clinton and Attorney General Reno during the year of impeachment was troubling--the head of the nation's secret police has too much behind-the-scenes power to play political-manipulation games without dangerous risks to democratic governance. Also troubling was his decision to leave office two years short of a term deliberately calculated to avoid changing FBI directors and Presidents simultaneously, the Congressional desire being to insulate the bureau from partisan politics.
We wish Ira well in his post-ACLU career; we wish his successor, Antonio Romero, good luck in keeping a fractious community coherent without sacrificing First Amendment principle. We also look to the ACLU to help define the qualities and criteria the Administration, Congress and the people should look for in Freeh's successor. J. Edgar Hoover's name and shadow still dominate and darken the FBI. It's only because of organizations like the ACLU that his bureau did not do more damage.
News that the United States has been voted off the UN Human Rights Commission and the UN international drug monitoring board has elicited vows of revenge from conservatives in Congress. They threaten to withhold payment on the long-unpaid dues owed the UN. They blame our adversaries--China, Cuba, Sudan and others--for the insult. But the secret votes enabled allies as well as adversaries to vent their mounting exasperation with US policies. At the last session of the commission, the United States stood virtually alone as it opposed resolutions supporting lower-cost access to HIV/AIDS drugs, acknowledging a human right to adequate food and calling for a moratorium on the death penalty, while it continued to resist efforts to ban landmines.
The global outrage is by no means limited to US policies on the Human Rights Commission. In barely 100 days in office, the Bush Administration has declared the Kyoto accords on global warming dead, spurning eight years of work by 186 countries. It banned US support for any global organization that provides family planning or abortion services, even as an AIDS pandemic makes this a matter of life and death. It bade farewell to the antiballistic missile treaty, while slashing spending on nuclear safety aid for Russia. It casually bombed Iraq, helped shoot down a missionary's plane over Peru and enforced an illegal and irrational boycott of Cuba. It sabotaged promising talks between North and South Korea, publicly humiliating South Korea's Nobel prizewinning president, Kim Dae Jung. The nomination as UN ambassador of John Negroponte, former proconsul in Honduras during the illegal contra wars, is an insult. "There is a perception," said one diplomat in carefully parsed words, "that the US wants to go it alone."
Our lawless exceptionalism is a deeply rooted, bipartisan policy that didn't begin with the Bush Administration. Under previous Presidents, Democratic and Republican, Washington denounced state-sponsored terrorism while reserving the right to bomb a pharmaceutical plant in Sudan or unleash a contra army on Nicaragua. It condemned Iraq for invading Kuwait while reserving the right to invade Panama or bomb Serbia on its own writ. The United States advocated war crimes tribunals against foreign miscreants abroad while opposing an international criminal court that might hold our own officials accountable. Our leaders proclaim the value of law and democracy as they spurn the UN Security Council and ignore the World Court when their rulings don't suit them. The Senate refuses to ratify basic human rights treaties. The US international business community even opposes efforts to eliminate child labor. And of course, there are those UN dues, which make us the world's largest deadbeat.
Worse is yet to come. US policy is a direct reflection of its militarization and the belief that we police the world, we make the rules. The Bush Administration plans a major increase in military spending to finance new weapons to expand the US ability to "project" force around the globe--stealth bombers, drones, long-range missiles and worse. The tightly strung Defense Secretary Donald Rumsfeld sounds increasingly like an out-of-date Dr. Strangelove as he pushes to open a new military front in space, shattering hopes of keeping the heavens a zone of peace.
As the hyperpower, with interests around the world, America has the largest stake in law and legitimacy. But the ingrained assumption that we are legislator, judge, jury and executioner mocks any notion of global order. From the laws of war to the laws of trade, it is increasingly clear that Washington believes international law applies only to the weak. The weak do what they must; the United States does what it will.
After the cold war, we labeled our potential adversaries "rogue nations"--violent, lawless, willing to trample the weak and ignore international law and morality to enforce their will. Now, in the vote at the UN, in the headlines of papers across Europe, in the planning of countries large and small, there is a growing consensus that the world's most destructive rogue nation is the most powerful country of them all.
This is not a role most Americans support. Public interest groups and concerned individuals will vigorously remind Congress of the widespread popular backing in this country for paying our UN dues, for global AIDS funding and other forms of international involvement. Unilateralism must be opposed in all its guises, from national missile "defense" to undermining efforts to curb global warming. The United States was founded on a decent respect for the opinions of mankind. Let's keep it that way.
Jay T. Harris resigned March 19 as publisher of the San Jose Mercury News, saying he was unwilling to make staff cuts necessary to meet the profit goals of Knight Ridder, the paper's parent company, in the current weakening economy. (Newspaper analyst John Morton estimates that the Mercury News earned a profit of better than 30 percent of sales last year.) On April 26, Dow Jones quoted Knight Ridder executives as saying they had been told they would receive bonuses for cutting staff--as much as twice their salaries, according to one official. Knight Ridder said the story is untrue. Shortly after resigning, Harris explained his action in a speech to the American Society of Newspaper Editors.
It was the conviction that newspapers are a public trust that brought me to Knight Ridder in 1985. I understood then and understand even better today that a good newspaper and a good business go hand in hand. Indeed, without a good business it would be impossible for a newspaper to do good journalism over the long haul. But at some point one comes to ask, What is meant by a good business? What is good enough in terms of profitability and sustained year-to-year profit improvement? And how do you balance maintaining a strong business with your responsibilities as the steward of a public trust?
Most businesses can reduce expenses more or less proportionately with demand and revenue without doing irreparable damage to their core capabilities, their market position or their mission. But news and readers' interests do not contract with declining advertising. Nor does our responsibility to the public get smaller as revenue declines or newsprint becomes more expensive.
In the same way that hospitals are important to the health of individuals and communities, good newspapers are important to the health of our communities, our nation and our democracy. My argument today is that a freedom, a resource, so essential to our national democracy that it is protected in our Constitution, should not be managed primarily according to the demands of the market or the dictates of a handful of large shareholders.
Quality is not a matter of public versus private ownership--the issues are the same in both. There are publicly held newspapers where quality does not vary noticeably in good times or bad. There are others, and I would include Knight Ridder in this number, that publish very good newspapers, but the tension between quality and responsibility on the one hand and financial expectations on the other is constant, and the balance is tenuously maintained.
I thought the tension and its sources were captured clearly and succinctly in a recent segment on The NewsHour With Jim Lehrer during which correspondent Terrence Smith asked Lauren Rich Fine, a Merrill Lynch media analyst, "What profit margin does Wall Street expect from a newspaper, a publicly held newspaper company? If they average in the 20s, is that enough? What does it have to be?" To which Fine responded: "Well, it's never enough, of course. This is Wall Street we're talking about."
That is an honest and unabashed statement of what some of us see as the tyranny of the current situation. It matters not whether the source of that tyranny is the demand of analysts and major shareholders, the reaction of corporate executives to those demands or merely the demand of owners of privately held newspapers for an unreasonably high return.
The trend threatening newspapers' historic public service mission is clear--if we're willing to see it. And it can be challenged and reversed--if we're willing to speak out. Of course, many are unable, or unwilling, to see or speak the truth of the situation. One reason is that the high salaries many of our leaders receive, in newsrooms and business offices as well as corporate headquarters, have turned into golden handcuffs. And those handcuffs have morphed into blindfolds and gags as well.
But this muffle of good fortune has not produced absolute silence. Today, we hear a growing chorus of brave souls, inside and outside the industry, protesting vigorously--and an audible grumbling of discontent from within the ranks of journalists and readers alike.
So where do we go from here? I am hopeful and optimistic about the future of American newspapers--both as a business and as key contributors to the vitality of our democracy. I neither believe nor will I accept that the current trend can't be changed, that the proper balance can't be restored, that the unwise is somehow unavoidable or that a course that is inconsistent with our principles and values must be followed. I believe that if we are willing to speak the truth, willing to talk together and work together to determine what the proper balance is and how it can be restored, we can achieve that end. Here are a few thoughts on how this might be done:
§ The discussion needs to include all the stakeholders, not just publishers, editors, large shareholders and institutional investors. Journalists and employees from the business side need to be at the table as well. So do readers, scholars and a diverse group of community representatives.
§ One goal of the effort should be to develop a working definition of what being a good and faithful steward of the public trust requires of newspaper managers and newspaper owners.
§ The moral, social and business dimensions of the issue should be fully explored and given equal priority.
§ The discussion should build the case for a steady and reliable investment, insofar as prudent business allows, in news, circulation, research and promotion.
§ The case needs to be made that editors must seek equal access to the publisher's chair. Journalists cannot leave the helm to those who do not have a deep commitment to a newspaper's responsibilities to its readers and its community.
§ And finally, a way must be found to give the public a sense of "ownership" in its community's newspaper. It should hold the paper--its managers and owners--to reasonably high standards and accept nothing less.
I scanned all the cheap effusions that followed the Bob Kerrey disclosures, looking for just one mention of just one name. Ron Ridenhour. Ron was the GI who got wind of the My Lai massacre, followed up on what he'd heard, complained to the higher-ups and, when that didn't work, blew the whistle to the press (which took about a year to print anything). He was a friend of mine and by any known test an American hero. Except that there is a strong tendency in all cultures and all societies to hate people like Ron. By his simple and principled action, he destroyed all the excuses of those who say that war is hell and "whaddayagonnado." He was from Texas whiteboy stock and an uneducated draftee; call him a grunt--he wouldn't have minded. His example demolishes both those who say that only combat-hardened men can judge other veterans, and those who shiftily maintain that those who weren't actually there have no business making judgments. Ron wasn't at My Lai, but he'd seen quite enough to know that the rumors of what had happened were probably true, and he felt obliged to check them out, and to risk his own skin to do so.
Things evidently happened rather fast in the village of Thanh Phong on February 24, 1969. Calley's platoon in March 1968 had taken much of a day in which to really work on the villagers of My Lai. Nonetheless, even given more leisure, Bob Kerrey would not I think have raped any of the women, cut off any ears, disemboweled any babies or tortured any of the prisoners. He never went around referring to the Vietnamese as "gooks" or "slopes" or "slants." Whenever the subject of war came up in Washington during his tenure as a senator, he was a sane and lucid voice. And I should add that I know him somewhat and that, since I'm a lowly adjunct prof at the New School, he is actually my president.
By the end of his week before the cameras, however, I began to wish that he wasn't. If you have had more than three decades to reflect, and some weeks of advance notice on top of that, you don't have to rise to the Ron Ridenhour standard. But you must not disgrace it. It is, I suppose, arguable that both Gerhard Klann (a man in possession of a somehow unfortunate name) and the Vietnamese witnesses are all under a misapprehension. But neither the New York Times Magazine nor 60 Minutes II gave them any chance to compare notes or concert their story. And then Kerrey, confronted by the contradictions of his own account, said the following: "The Vietnam government likes to routinely say how terrible Americans were. The Times and CBS are now collaborating in that effort." This was a sad improvisation of paltry lies, adding up to a lie on the Spiro Agnew scale. (As this was going to press, Kerrey told me that he's written to the Times to withdraw at least the "collaborating" part.)
Nobody troubled to report an even worse moment at Kerrey's press conference, which occurred when the invaluable Amy Goodman asked him about the command responsibility for war crimes borne by the Nixon-Kissinger architects of the aggression. (He was, after all, under orders in a "free-fire zone" to treat all civilians as potential cadavers and all cadavers as part of the enemy "body count"; he did accept a citation for carrying out this standing policy.) I can appreciate that Kerrey might not have wanted to seem to shift responsibility; the Ridenhour standard makes it plain that you can't be ordered to commit crimes against humanity. However, such a standard must not be twisted for the purposes of moral relativism. Kerrey answered Goodman's inescapable question by focusing entirely on his own need to "get well." He thus excused himself--and his political "superiors."
The date of the "firefight" is almost unbearable to contemplate. February 24, 1969, is about a month after Nixon took the oath of office. It's about two months after he asked Henry Kissinger to be his National Security Adviser. It's about three months after the South Vietnamese military junta withdrew precipitately from the Paris peace negotiations. And it's about four months after the Nixon campaign made a covert approach to that same junta in order to incite it to do so, and to take out an illegal and treasonous mortgage on another four years of war, as well as to subvert an American election. (For still more evidence of this historic crime, see most recently Robert Mann's A Grand Delusion: America's Descent Into Vietnam, published by Basic Books.) One must of course sympathize with Kerrey's pain. Only a few weeks after Thanh Phong, Kerrey lost a healthy limb to Nixon's sick design. But even the most tentative judgment requires that we give moral priority to the more than 20,000 US servicemen who died after the sabotage of the Paris talks, and to the uncountable number of Vietnamese, Cambodians and Laotians who were immolated as a result of the same despicable policy.
We should also abandon easy nonjudgmental relativism and give moral priority to men like Hugh Thompson, Lawrence Colburn and Glenn Andreotta. These three were flying over My Lai in their helicopter on March 16, 1968, and saw Charlie Company butchering the inhabitants with no "enemy" in sight. Thompson not only grounded his chopper between the remaining civilians and his fellow Americans, he drew his weapon and told the murderers to back off. This was no impulsive gesture; he took some civilians away with him and then returned. Andreotta (who was killed three weeks later) found a small child in one of the corpse-choked ditches and managed to save him. Exactly thirty years after the atrocity, Thompson, Colburn and--posthumously--Andreotta were awarded the Soldier's Medal in a ceremony at the Vietnam Veterans Memorial. It's the highest award you can get for an action that doesn't involve engaging "the enemy." There was no mention of their awkward bravery in the recent coverage, either, though as far as was possible, these three men lived up to one of our current dopey mantras, which is to "leave no child behind."
If Kerrey wishes he could say the same, rather than have left a pile of children behind him, then he has missed several opportunities to do so. His official statement was entirely about himself. It did not in fact come clean about what happened. And it did not contain one word of contrition for the action, or of sympathy for the victims. It was also internally inconsistent in other ways. The war, he said, hadn't become unpopular until 1969. Whatever this was supposed to mean, it didn't explain his accepting a Medal of Honor from Richard Nixon on May 14, 1970, in a ceremony that he now claims he knew was a tawdry and stagy bid for public opinion, and in the immediate aftermath of the assault on Cambodia and the killings of lawful protesters at Kent State and Jackson State.
Talking of universities, I was ashamed and disgusted to read the statement put out by the authorities at the New School. Here it is in full: "The Board of Trustees of New School University gives its unqualified support to Bob Kerrey. It is hard for most of us to imagine the horrors of war. War is hell. Traumatic events take place and their terrible effects may last a lifetime. We should all recognize the agony that Bob has gone through and must continue to deal with. We should also recognize that Bob's heroism and integrity have been demonstrated on many occasions. The Board of Trustees stands solidly behind him."
I try to teach English to humorous and intelligent graduates at this place. I could and will use this pathetic text--signed by John Tishman and Philip Scaturro, respectively chairman of the board and chancellor--as a case study in subliterate euphemism. ("What about Bob?" Leave no cliché behind!) But it is worse than it looks. Notice the insistence that only Kerrey's feelings count. And notice the insinuation that wartime actions are above moral distinction or discrimination. The New School, founded by some antimilitarist defectors from the then-conformist Columbia University at the end of the First World War, became the host campus for dozens of anti-Nazi refugee scholars in the succeeding decades. It gave podiums to Erich Fromm and Hannah Arendt, in lecture rooms where the nature of political evil was thoroughly discussed. It still runs democracy programs from Kosovo to South Africa. Its student body is multinational and always has been. A word or two about the slaughtered Vietnamese might not have been out of place. But this graceless little handout didn't even refer to them. Unrepudiated, the statement is a direct insult to everybody at the school and a surreptitious invitation to a creepy kind of secondhand complicity in murder.
I've no wish to hurt Kerrey's feelings unduly, but it ill becomes him to act as if he's facing a firing squad while he's being made the object of apparently limitless empathy. The truth of the matter is that I can't guess what these "many occasions" of "heroism and integrity" have been. (I'm assuming, perhaps incorrectly, that the New School authorities aren't counting the Thanh Phong massacre.) He was a fairly decent senator, as I've already said. But he showed then, as he shows now, a pronounced tendency to have things both ways. Like the Moynihans and the Gores, he was fond of privately denouncing Clinton as a crook and a liar and a thug, and then casting the ultimate vote in his favor. He told me in the week of the impeachment trial that he was determined to vote to convict Clinton for obstruction of justice, adding rather irrelevantly that it "wouldn't do him any harm" in his home state of Nebraska. And then, maybe when he remembered that he'd steered the Democratic Senatorial Campaign Committee through one of the greatest fundraising bonanzas in history, he thought better of it. "They all do it," of course, but then they needn't expect moist tributes for their bravery.
And yet--they don't all do it. Think again of Ridenhour, Thompson, Colburn, Andreotta--names that are barely known, names of men who would have been ashamed to leave a ditchful of women and children behind them, or to watch such a ditch being filled and say and do nothing. And think of what a great wall we'd have to build if we intended to inscribe all the Indochinese names. There's no possible repair or apology that could measure up to such a vast crime. But this must not mean a culture of stupid lenience and self-pity, in which the only wounds to be healed are those of the perpetrators, or of their obedient servants. How wonderful that at last we are forgiving the people of Vietnam for what we did to them.
There are war crimes and there is the crime of war, and it's ethically null to say that only veterans can pronounce on either. (There could be no human rights tribunals or Truth and Justice Commissions if this were so.) Kerrey was not caught in an ambush or suddenly placed in a hopeless situation. He led a stealthy, deliberate incursion into other people's homes, and the first act of those under his command was to slit the throats of an elderly couple and three children to keep them from making a sound. Kerrey now says that he didn't enter that particular "hooch" before, during or after--something of an oversight for the team leader, whose job it was to ascertain the nature of the opposition. He says it was a moonless night; the US Naval Observatory says there was a 60 percent disk until an hour after the squad had finished up....
This horror occurred in the context of two others: the Phoenix program and Operation Speedy Express. The first has been acknowledged even by its architects as a death-squad campaign, and the second was exposed at the time, by Kevin Buckley of Newsweek, as a mass slaughter of the civilians of the Mekong Delta. In other words, it's a bit late for armchair supporters of the war, or armchair excuse-makers, to discover indecipherable subjective mysteries where none in fact exist. Kerrey's after-action report on Thanh Phong, for which he received a Bronze Star citation, reads, in a vile code compounded of cruelty and falsification: "21 VC KIA (BC)." That stands for twenty-one Vietcong, killed in action according to body count. Did he accept that medal as part of coming to terms with how haunting it all was?
The humanoid who came up with the shady term "Vietnam syndrome" was of course Henry Kissinger, who had every reason to try to change the subject from his own hideous responsibility. But even now, the president of a humanist academy takes up that same pseudo-neutral tone of therapy-babble and quasi-confessional healing, instead of demanding the Truth and Justice Commission that might establish what we owe to the people he killed, as well as what we could and should do about the still unpunished and still untroubled people who directed him to slay them in their sleep.
In many respects, the recent meeting in Chicago of the National Abortion Federation (NAF), the major professional association of abortion providers in North America, looked like any other medical gathering. Participants wearing name tags attended workshops, engaged in lively debate about medical innovations in their field, examined the exhibits set up by vendors and greeted old friends and colleagues.
But in other ways this was not a typical medical conference. Security was tight, with guards checking registration badges and conferring on walkie-talkies. Along with presentations on "Vaginal Ultrasound Assessment" and "Monitoring Chorionic Gonadotropin Levels After Mifepristone Abortion" were sessions on "Ensuring the Rights of Minors: Making Your Judicial Bypass Work" and "Understanding FACE (Freedom of Access to Clinic Entrances) and How to Invoke Its Protection." One of the keynote speakers was an FBI agent who played a key role in the apprehension of James Kopp, the fugitive accused of murdering Dr. Barnett Slepian, an abortion provider in Buffalo, New York, in 1998, and of wounding several other physicians.
While NAF meetings always display this surreal combination of conventional medical components and vivid reminders that abortion is the most politicized--and besieged--branch of medicine in the country, this year the atmosphere was especially tense. The fact that the reliably prochoice Clinton-Gore team is gone, replaced by an Administration that is deeply, and cleverly, hostile to abortion, seemed to hover over every conversation. As abortion providers well know, even if Roe v. Wade is not overturned, abortion access can be eviscerated by its enemies. Here are just some of the Bush Administration's initial steps in that direction:
§ As Attorney General, John Ashcroft, one of the most fanatically antiabortion senators in history, is charged with protecting the safety of abortion providers and patients. Despite repeated assertions at his confirmation hearings that he accepts Roe as "settled law," no one expects him to continue with the forceful and active steps that his predecessor, Janet Reno, took to combat antiabortion terrorism. Ashcroft will also play a key role in judicial appointments. While public attention has inevitably focused on the Supreme Court, judges appointed to lower federal courts have an enormous impact on abortion provision, ruling in such diverse areas as waiting periods, legislatively mandated scripted counseling for abortion patients, interpretations of permissible buffer zones outside clinics (areas that may be kept free of protesters) and on any revisitation of "partial birth" abortion bans.
§ Secretary of Health and Human Services Tommy Thompson sent chills down the NAF community's collective spine when he announced at his confirmation hearings that he would call for a "review" of the FDA's approval last fall of the "abortion pill," RU-486 (mifepristone). Also, antiabortion Congressmen have introduced the Patient Health and Safety Act (PHSA), a bill that seeks to restrict distribution of the drug by prohibiting anyone other than physicians who provide surgical abortions from dispensing it, thereby thwarting its promise to improve access in underserved areas. Thompson's threatened "review" would likely do the same.
For now, Thompson appears to be holding off on such a review. The Administration has not yet named an FDA commissioner, most likely because of the hot-button politics of mifepristone approval. And it is not clear whether the PHSA will pass the Senate. But uncertainty over the fate of this drug is hampering the campaign to disseminate it. Prospective abortion pill providers face a host of other challenges as well: arranging malpractice insurance and managed care reimbursement, conforming to legal requirements (parental notification, waiting periods, etc.). As a result, nearly all those currently offering the drug are surgical providers.
§ The Unborn Victims of Violence Act, passed by the House on April 26, makes it a federal crime to injure or kill the fetus of a pregnant woman. Even though the act specifically exempts abortion, the prochoice community widely views it as a crucial first step in a campaign by abortion opponents to secure the status of "personhood" for the fetus (and indeed, embryos and blastocysts). As one lawyer at the NAF meeting told me, "Fertilized cells will have the same legal status as a woman, and eventually this will threaten various forms of birth control as well as abortion." George W. Bush has voiced his eagerness to sign the bill into law.
And what of the Supreme Court? Amid the rumors of the possible retirement of one or more Justices this summer, the stakes are high for abortion providers--and for Bush as well. Given the public's split on the issue, Bush risks alienating a sizable number of voters no matter what he does. (Despite people's discomfort with abortion, polls show that a majority wants to see Roe stand.) One likely scenario is that Bush will nominate a "stealth" antichoicer--one with no paper trail on abortion--and then try to prevent an abortion case from reaching the Court before the 2004 election.
How can the abortion rights movement respond? Lucinda Finley, a law professor at SUNY, Buffalo, says, "The movement must convince senators to announce that they will not confirm someone who is unwilling to state his or her position on Roe." The Feminist Majority urges a filibuster against any nominee not committed to preserving Roe (see www.million4Roe.com). Whether prochoicers have such political capital remains to be seen. The recent abortion rights march in Washington, whose timing unfortunately conflicted with Earth Day and Quebec demonstrations as well as the NAF meeting itself, attracted a disappointing turnout and almost no media attention.
As the rest of the movement awaits the Court showdown, abortion providers continue to endure countless hassles just to open the doors of their clinics each day. Many states have imposed TRAP--"targeted restrictions against abortion providers"--laws consisting of cumbersome rules, directed only at abortion facilities, regulating such matters as door width and air flow. Even those in states without TRAP laws face constant battles with landlords who try to evict them, vendors under pressure not to service them and frequent threats of violence. The community of providers, which has shown an extraordinary ability to carry on its work with humor and bravery even in such unacceptable circumstances, is gearing up for a long fight.