Hasta La Gadget!

Pretty much every time the federal courts hear a case connected to civil rights, voices on the political right can be counted on to say, “Unelected judges shouldn’t decide this! It should be left to the democratic process!”

That’s a fundamental misreading of the U.S. Constitution and it forces one to overlook some distinctly unpleasant history. Still, I wish the current U.S. Supreme Court — the ultimate tribunal for most of these cases — gave me more confidence in its willingness to do the right thing. Two important civil rights cases are on the court’s docket this term, only one of which has gotten much publicity.

The issue currently drawing “leave it to the voters” talk is same-sex marriage. The rabid opponents at the National Organization for Marriage complain of same-sex marriage advocates “seeking to skip the debate and the legislative process entirely, opting rather to redefine marriage through the courts.” Justice Antonin Scalia picked up that thread during the court’s April hearing on the issue, saying the key question is “who should decide the point,” making it clear he didn’t think it should be the courts.

But the civil rights of minorities in U.S. society have always depended on the courts. Indeed, the reason we have a constitution — and particularly the 14th amendment — is because some rights are so fundamental they cannot be left to popular whim. That amendment, which guarantees that no state can “deny to any person within its jurisdiction the equal protection of the laws,” was only passed after the nation fought a bloody and horrific Civil War over the issue of slavery. It was needed because for a century in this nation supposedly dedicated to the idea “that all men are created equal,” the democratic process had utterly failed to curb laws that allowed humans to own other humans as property.

For decades, groups like the NAACP tried to achieve such minimal civil rights protections as an end to lynching through the democratic process, but got nowhere. Getting no relief from state legislatures or Congress, civil rights groups rightly turned to the courts and demanded that they enforce the equal protection clause, finally winning a history-changing victory in Brown v. Board of Education. It’s hard to imagine a more important function for our courts than to make sure the doors to the American Dream truly remain open to all, regardless of whether a particular group of Americans is popular.

The blunt truth is that the democratic process hasn’t been very good at protecting civil rights. As recently as 1964, Californians voted to allow racial discrimination in housing by passing Proposition 14 to repeal the Rumford Fair Housing Act, which had banned such discrimination. It was left to the courts to overturn Prop. 14 and protect against housing discrimination. And only recently have the results of referenda on same-sex marriage turned favorable to the marriage equality side of the argument.

The Supreme Court is about to return to the issue of housing discrimination in a case out of Texas. It could overturn longstanding legal precedent under which fair housing laws apply to policies that result in unjustified discrimination, whether or not that discrimination was intended. What should matter is whether the practical effect of an action is discriminatory. If the court abandons that position, it will badly weaken fair housing protections.

This matters to me, as a child of immigrants who has spent most of my adult life working at an organization devoted to ensuring that those doors of opportunity are indeed open to all, regardless of race, income, zip code or other artificial barriers. We need the courts to act to protect our rights when legislators don’t have the courage to do what’s right.

But much as I believe in the role of the courts in guaranteeing constitutional protections, I can’t say I have a lot of faith in the current Supreme Court to fulfill its responsibility. This is the court, after all, that not long ago cut the heart out of the Voting Rights Act, based on the bizarre logic that because the law had worked, it was no longer needed or even constitutionally permissible. In other disturbing decisions of recent years, the high court has made it harder for victims of workplace discrimination or harassment to sue, and threatened the future of affirmative action programs that are already greatly limited by prior rulings.

I want the doors to equality, opportunity and success to be open to all, regardless of their age, race, ethnicity, gender or sexual orientation. I wish I felt sure that our Supreme Court does as well.

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Are American voters now being given the option of choosing a virtual third term for George W. Bush? Astonishingly enough, that seems to be the direction his brother’s campaign has chosen to head towards. I use the word “astonishingly,” since conventional wisdom would seem to indicate that this is a dandy way to commit political suicide. But because Jeb Bush is standing so resolutely with the last Bush administration’s policies, he now risks his entire campaign turning into a referendum on whether America is truly ready for a third Dubya term.

Jeb’s campaign has, up until this week, gotten off to a slow start. This is likely been done on purpose, so mountains of cash can be raised quietly, behind the scenes, without trying to compete in any way with the other flash-in-the-pan Republican candidacies that have been announced recently. But when Jeb got interviewed earlier this week on Fox, he gave an answer to a question about the Iraq War that caused quite a few jaws to drop. Jeb seemed to be saying that even “knowing what we know now” he still would have made the same decision to invade Iraq as his brother did. Now, I parsed his answer in yesterday’s column, and wound up giving him the benefit of the doubt. I believe that what really happened was that Bush tried to answer the question he wanted to be asked rather than the question he was actually asked. To be fair, politicians use this trick all the time and they are rarely called on it.

But now Bush has tried to quell the controversy in another interview, and he wound up doing even more damage. Here is his excuse for his previous answer, and his new answer to the question:

I interpreted the question wrong, I guess. I don’t know what that decision would have been — that’s a hypothetical. Simple fact is, mistakes were made.

Wow. “Mistakes were made.” That’s it? Pretty passive stuff, to say the least.

In the intervening time period, other Republican presidential candidates have been asked the same question, and most responded with some version of: “Knowing what we now know? Then, no, I would not have invaded Iraq.” It’s really not that tough a question to answer, except when the man you’re implicitly criticizing shares your last name.

But this raises a whole raft of questions for Jeb. How deep does fraternal loyalty go? I mean, I understand that this could make for an awkward Thanksgiving dinner at mom and dad’s house, but such is the nature of dynastic politics. Jeb, in the original interview, seemed to be almost taunting the press: “Yes, I mean, so just for the news flash to the world, if they’re trying to find places where there’s big space between me and my brother, this might not be one of those.” But where, one wonders, can one of these differences be found, if not on Iraq? Bush seems to relish tossing down the gauntlet to the press to find daylight between him and his brother, in an “I bet you can’t find any!” way.

Is Jeb Bush really going to run his campaign to be the third term for his brother? Does he really think that’s going to be a winning strategy? If this is true, it might be a shorter campaign than Jeb is now planning, to say the least. Even most Republicans now admit that invading Iraq wasn’t ultimately such a hot idea, after all, to say nothing of the general public or even just independent voters. Jeb famously said earlier that his campaign might have to “lose the primary to win the general,” which was seen as a signal that he wouldn’t be catering to the most rabid of the Republican voter base, but rather attempting to win enough delegates to secure the nomination among more moderate Republicans. By tying himself so closely to his brother’s legacy, he risks not even being able to do that. If he somehow does manage to claim the Republican nomination, touting his brother’s record isn’t going to win him many votes among a large portion of the general election electorate.

Both Jeb Bush and Hillary Clinton face dynastic problems in their campaigns. Jeb has not only an ex-president brother but also an ex-president father. Hillary’s husband was president as well, obviously. Both Jeb and Hillary have the challenge of proving to the public that they’re not just a clone of their relatives, and that they have their own opinions on critical matters. The world has changed, the country has changed, and therefore new positions on some issues are necessary. Hillary has already begun this shift, since populism is going to be much more important to her political prospects than it ever was for Bill’s. She’s shifting away from Wall Street and towards Main Street, in her economic outlook. This will eventually cause her to refute or at least rebut some of her husband’s policies. It’s inevitable. There are in fact many other policy shifts she’ll be able to make without rocking the Democratic boat too much.

But where else is Jeb going to disagree with his brother’s policies if not on Iraq? It’s the most obvious choice for him, but he seems determined not to take it. Part of Jeb’s problem, many have pointed out, is that he has surrounded himself with the exact same foreign policy advisors his brother used while president — and while America invaded Iraq. This is almost assuredly influencing Jeb when he talks about Iraq, but it’s impossible to know to what degree. This may become a much bigger problem for Jeb, because it just reinforces the “Dubya’s third term” theme in the public eye.

Distancing himself from his father is a little easier for Jeb to accomplish, because George H. W. Bush earned the wrath of his own party for signing a tax increase (after his famous “read my lips: no new taxes” pledge). Jeb can easily point to this example and say he’d have acted differently than his father. It’s an acceptable answer for the Republican base voters.

Jeb should have taken the exact same route with the hypothetical Iraq question, and created some distance from both his brother and from a war most of America now feels wasn’t worth fighting. He wouldn’t have caused too many ripples by doing so, if his answer was artful. Earlier in the campaign he stated that he was “his own man” (i.e., not his brother) and this would have been the perfect opportunity to prove it.

Instead, Jeb seems to be getting more and more bogged down by what should have been an easy softball question. Now it’s not just journalists that are asking, but people at his campaign stops as well. When one asked how he was different from his brother, he first tried to laugh it off with: “I’m much better looking than my brother. I’m much younger.” When that didn’t work, he tried a blanket statement which could even make things worse for him: “Of course I have differences with every previous president.” This just leads to more amusing questions for Jeb to stumble over, such as: “What differences do you have with Ronald Reagan?” — a rhetorical minefield to traverse in front of a crowd of Republicans, if ever there was one.

By refusing to give the common-sense answer to the Iraq question, Jeb has now set himself up for endless future questioning over whether there are in fact any differences between him and Dubya. By taunting the press (in essence: “Betcha can’t find any differences!”) Bush does two things, neither of them good for his campaign. He’s guaranteeing he’ll get more and more questions comparing him to his brother in the future (which was supposed to be something Jeb’s campaign wanted to avoid). Secondly, if Jeb keeps doubling down on supporting each and every position of his brother’s, he ties himself tighter and tighter to Dubya’s record and legacy.

At some point, this is going to look an awful lot like his campaign is making the case for a third Dubya term. Such a backwards-looking campaign is not exactly a winning hand in presidential contests, though. His opponents will soon start asking: “Do we really want to relive the Dubya years?” Or, even worse: “Do we really want more of these ‘mistakes’ to be made?”

Chris Weigant blogs at:

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In a blockbuster 10,000-word story for the London Review of Books this week, longtime New Yorker investigative journalist Seymour Hersh called into question the official account of the American raid that killed Osama Bin Laden, and argued that what is arguably seen as the apex of Barack Obama’s presidency is actually built on a lie.

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Congratulations to Joshua Horwitz, author of War of the Whales: A True Story – winner of the 2015 PEN Literary Award for Science Writing (PEN/E.O. Wilson Literary Science Writing Award). His selection, announced today, confirms the consensus of so many readers and critics that War of the Whales is an exceptional achievement in non-fiction story-telling. This prestigious prize is the latest critical acclaim that War of the Whales has received – and it is certain to widen still further the audience that the book has already achieved.

The product of intensive research and compelling writing by Horwitz over a period of seven years, War of the Whales tells the story of NRDC’s 20-year legal battle, alongside marine biologist Ken Balcomb, to discover and rein in the classified program for development of high intensity military sonar systems used by the Navy in the detection of enemy submarines. Although the book spans decades of classified Navy activity to build its marine mammal program, the focus of its central storyline is a mysterious series of unexplained strandings and mass mortalities of whales and other marine mammals and the efforts, over many years, by NRDC and Balcomb to document their connection to sonar and then force the Navy, through the federal courts, to take action to avoid or reduce the resulting harm.

This is a story whose conclusion remains to be written. Most recently, in late March, in the latest lawsuit against the Navy by NRDC and others, a federal judge in Hawaii issued a scathing opinion finding the Navy in repeated violation of its legal duties in connection with the siting and operation of sonar testing and training ranges in the biologically rich waters off Hawaii and Southern California. Certain to be appealed unless a settlement can be negotiated, this is the latest battle in a war whose resolution is both sensible and achievable if only Navy leadership is willing to recognize it. Ultimately, the Navy must come to accept that not every square foot of the oceans, regardless of its biological importance, can be made available at all times for testing and training activities that needlessly put those resources at risk for practice.

By laying out the history of the sonar wars in such a comprehensive and compelling yet factually accurate way, War of the Whales persuasively conveys not only the power of determined individuals and organizations in the face of one of the world’s most powerful institutions, but the potential – yet unachieved — for that institution to evolve if its leadership is willing to allow it. This is a remarkable accomplishment for any author, and Joshua Horwitz richly deserves the recognition from PEN that his work has received today.

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