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My World Cup

The World Cup of soccer is a great international experience. Every four years, 32 national teams compete in a month-long series of games, culminating in a world championship that gives even the poorest and humblest of the winning team’s countrymen four years’ worth of bragging rights over the entire world. The 2018 championship game was played today, between the national teams of France and Croatia, in Moscow.

The sport is known as “soccer” in the United States, but as “football” in much of the rest of the world. Even the French, who ordinarily get rather testy about the immigration of English words, call the sport “football.” So do the Germans. In the Spanish-speaking world, it’s “futbol.” Many languages have their own terms for the sport, words that are not imported versions of English words. In Indonesian, for example, the sport is called “bola sepak.” But even then, for the most part, when people in those countries speak in English about the sport, they call it “football,” not “soccer.”

Our few terminological allies share our need to distinguish soccer from another sport that is locally known as “football.” In the U.S. and Canada, “football” is the game played with a prolate spheroid-shaped ball, in which two teams each field eleven players at a time, the teams in turn trying to advance the ball toward a goal line and opposing that advance.

In Australia, “football” is a rugby-like game called “Australian rules football” that combines the pace of soccer with the violence of American football. Australians rarely call Australian rules football by its actual name, because Australians rarely call anything by its actual name. In Australia, if it’s worth talking about at all, it’s worth shortening its name – my personal favorite being “breaky,” because, one knows, it’s just so much more trouble to say “breakfast.” So when Australians talk about Australian rules football, they call it “Aussie football,” or just “footy.” In any event, if you mention soccer to an Australian, he’ll know what you’re talking about.

Growing up in small-town America, I had relatively little exposure to soccer, and none at all to the World Cup. Only when I moved to New York did I realize what a world-wide spectacle the event is. After I got out of law school, I moved to a multi-ethnic neighborhood with a substantial Hispanic population – and Latinos are among New York’s most ardent World Cup fans. The 1982 World Cup was played in Spain and won by Italy. Latin American teams did relatively poorly that year – still, the event drew lots of vocal interest in sports bars, restaurants and social clubs around my neighborhood.

Four years later, when the Argentinian team won the final, my neighborhood erupted in a cacophony of celebratory horn-honking, noise-making and flag-waving. By comparison, the Times Square celebration of VE Day was just a small gathering of close friends. The Argentinian population of my neighborhood must have been second only to Buenos Aires that day. Either every Argentinian-American within a hundred miles had flocked here for the game, or else the entire Hispanic population had become honorary Argentinians for a day, or maybe both.

In 1988, I met the Colombian-American who would become my domestic partner and later my spouse. He is a life-long soccer fan and World Cup fanatic, and I caught the bug. I was already a sports fan, so I lacked immunity to the World Cup virus.

In 1995, my spouse and I took a vacation trip to his native Colombia, during the Copa America – a soccer tournament then played every other year. We spent a week on a farm near the small town of Filandia, and the caretaker of the farm invited us to a day-long barbecue at another farm a few miles away. That day was the Copa America third-place match, and it was between Colombia and the United States. I was the only American – the only non-Colombian – at the barbecue, and the Colombians rooted loud and hard for the Colombian team. I do root for American teams for whatever typically short time they remain in the running, but the Colombian fans attributed to me an ardency of fandom that matched theirs and far exceeded my own.

I dutifully played my role, but internally I rooted for Colombia, for the wholly pragmatic reason that I wasn’t sure how friendly the international rivalry would remain if the team of the gringo visitor beat the team of my hosts. And although American national soccer teams do not have the storied history of the great South American and European soccer powers, there was a real chance of American victory that day. The American team had done well in the previous year’s World Cup, which was hosted by the United States – including a 2 – 1 U.S. win over Colombia that kept the Colombian team from advancing to the second round of play.

Fortunately, the Colombian team beat the American team for third place in the 1995 Copa America. I made the required show of patriotic disgruntlement, but I was genuinely glad to take some ribbing from the Colombian fans.

Two of our later vacations coincided with World Cup tournaments. In 1998, my spouse and I spent four weeks in France – the first two weeks in Paris, before the World Cup games began, then two weeks in Brittany and the Alsace during first-round competition. Paris was decked out for the event, and public service announcements were everywhere, reminding Parisians to be nice to foreigners, and to be understanding of their infacility with French. (Parisians do need to be reminded.)

The Place de la Concorde, the largest Parisian square, was under construction to serve as the centerpiece of the opening ceremonies; the ancient Egyptian obelisk in the square (later given back to Egypt by French President Francois Mitterand) was covered by a metal frame that would ultimately support a giant stylized soccer ball on the top of the obelisk.

We watched the opening ceremonies from our gite de France in Brittany; it was ceremony as perhaps only Parisians can do ceremony. Four gigantic soccer players led four columns as from the four corners of the earth, parading to their ultimate meeting in the Place de la Concorde, in a convergence of great sport, great artistry, great history and great culture.

During our stay in the Alsace, we spent a day in Basel, Switzerland. During the afternoon, we came across an international food festival, with rows of tents housing pop-up restaurants of national cuisines from around the world. As we explored, we heard – faintly at first – merengue music, signaling that a Dominican Republic food tent was nearby. We followed the music and found the tent, where a muted television played a World Cup game between Nigeria and another team. As we ate, and watched, and listened to the merengue, we were joined by a Swiss man. Conversing with us first in English, he learned that my spouse is Colombian-American, and then conversing with us in Spanish, he told us about his Peruvian wife and their travels in Peru.

It was one of the great international experiences of my life: sitting with my Colombian-born partner in a Dominican Republic food tent in Switzerland, watching the Nigerian team competing in the World Cup in France and chatting with an English-speaking, Spanish-speaking Swiss man who was married to a Peruvian-born woman.

We had a similar experience in Reykjavik, in 2010, while the World Cup was being played in South Africa – the World Cup that gave the world the vuvuzela. In particular I remember having lunch in the Café Paris, chatting in English with a Danish couple at the next table, while a World Cup match (I don’t remember which teams) played in the background.

There was a Brazilian sports bar that was, as I remember it, on the main street of Reykjavik. You might need a moment, as we did, to absorb the concept of Brazilian sports bar in Iceland. My spouse and I stopped in, because that’s what one does when one comes across a Brazilian sports bar in Iceland.

Later during the same vacation, in the little town of Isafjordur, we came across a restaurant that billed itself “the northernmost Indian restaurant in the world,” and we stopped in there as well – because how could we not? We also came across a restaurant that billed itself as “Balkan,” where our conversation with the Bulgarian-Icelandic owner-cook-waitress led to our visit a few months later to Nessebar, Bulgaria, a beautiful little city of Byzantine ruins on a little spit of land sticking out into the Black Sea.

The Brazilian sports bar was filled with Brazilians, an unlikely gathering so close to the Arctic Circle. Apparently every Brazilian in the entire country had come to this bar, where we watched the Brazilian team beat the North Korean team, 2 – 1. We came across no North Korean partisans, or at least none who would confess to it.

I think the World Cup is more of an international experience even than the Olympics. In the Olympics, a national team competes in every event for which its athletes have qualified. Even national teams that win no medals, and may have no real hope to win any medals, are still able to compete right up to the very last day of the games. Therefore fans root for their countries’ teams throughout the competition.

In the World Cup, only 32 countries’ teams qualify for the event in the first place, and teams are eliminated as the competition progresses. True soccer fans remain involved in the premier event of the sport, whether or not their country’s team qualifies for the competition, and even after their country’s team is eliminated from the competition.

Therefore unlike the Olympics, by the end of the World Cup most of the world’s soccer fans are rooting for teams other than their own national teams. Personally, after the United States is out of the running, I tend to root for whichever team is the underdog – so I cheered Croatia’s knife-edge defeat of Russia last week, and I cheered for them in today’s final against France.

My spouse tends to root for other Latin American teams once Colombia is eliminated – although he has a soft spot for teams that include the world’s great stars, like the Portuguese team, whose star is Cristiano Ronaldo dos Santos Aveiro, universally known simply as Ronaldo.

Rooting for a team representing a country other than one’s own seems to me to be an emblematic international experience. I’m not talking about “tactical” rooting, when a fan of one team roots for another team in a particular game, because that team’s win will advance the prospects of the fan’s own team. That’s just “enemy of my enemy” fandom. I’m talking about “devotional” rooting, when a fan whose own team is out of the competition transfers true loyalty to another team.

France beat Croatia today, 4 – 2. It’s the second World Cup title for France; it would have been Croatia’s first. The French team includes players with last names like Rami, Umtiti, N’Zonzi, Mbappe, Griezmann, Hernandez and Fekir, whereas the Croatian team is essentially mono-ethnic. So the French victory is in its way a victory for internationalism.

 

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Mueller’s Second Indictment of Russian Conspirators

Just a few days ago I commented that Department of Justice Special Counsel Robert Mueller’s Russia investigation is primarily a counter-intelligence investigation. I said it was likely that the investigation had learned much more than had yet been publicly revealed.

I based that observation on publicly available information indicating that the Russian attack on our 2016 presidential elections had three major criminal components: a social media-centered disinformation campaign that involved use of stolen Americans’ identities, wire fraud, and bank fraud; the hacking and theft of e-mails and other documents from Hillary Clinton’s campaign and from Democratic Party organizations; and a series of intrusions into state voter databases and other election systems.

The disinformation campaign was the subject of Mueller’s indictment of 13 Russian individuals and three Russian companies last February. That indictment revealed a disinformation campaign that was years in the planning, well funded, sophisticated and complex, and well executed. The indictment also implied, without saying so directly, that the disinformation campaign was directed by, or at least approved at, high levels of the Russian government. The indictment adopted the characterization of the campaign given by one of the defendants’: “information warfare against the United States” – “warfare” being the key word.

Yesterday Mueller brought charges relating to the other two main components of the publicly known Russian criminal attacks: his grand jury indicted 12 more Russians on charges relating to the hacking and theft of documents from the Clinton campaign and from Democratic organizations, and the intrusions into state election systems and voter databases. Like the February indictment, this one alleges a sophisticated, well planned effort, approved at if not directed from high levels of the Russian government.

As has been the rule for Mueller’s indictments, this indictment’s narrative goes beyond the allegations narrowly necessary to support the stated criminal charges. In support of the criminal charges, the indictment details hacking and document theft operations from March 2016 to October 2016. But the indictment mentions in passing that the defendants had hacked and stolen “emails from individuals Affiliated with the Republican Party” – an allegation already in the public domain. The indictment says that the Republican hacking occurred “in 2015” – suggesting, without providing detail, that the Russian election hackers were at work well before the outcomes of the 2016 presidential primaries were apparent, and suggesting further that Mueller may have more charges in store regarding pre-2016 hacking by Russians.

Perhaps the most disturbing part of this indictment is the charge that Russian hackers attacked the election systems and voter databases, from June 2016 to November 2016. Their preferred method of attack was “spearphishing.” A spearphish is an e-mail sent to a targeted individual in an effort either to gain access to the target’s computer, either by obtaining account passwords or by planting malware in the target’s computer. The spearphish e-mail may contain an attachment and instruct the target to open it, or it may include a website link and direct the target to click on the link. Either way, if the target does as asked, the attack is successful. The spearphish often includes “spoofing” – disguising the e-mail as a security alert emphasizing the urgent need to follow the e-mail’s instructions in order to protect the user’s computer or data.

The indictment indicates that Russian spearphishing attacks were quite effective. What’s concerning to me is that I’ve seen no federal-level effort over the last 18 months, and precious little state-level effort, to protect the very same systems and databases that were compromised in 2016 from further attacks in 2018. Of course there would be good reason to install anti-hacking measures quietly – the last thing computer security managers want is for hackers to know the details of system protections and safeguards. Still, I’m concerned that the Republican Party line, being that Russian hacking either didn’t happen or was ineffectual, may have deterred Republican-controlled state governments from taking strong action to defeat future hacking, in apparent contradiction of the party line.

Media commentators have appropriately given much attention to the allegation in the indictment that hacking of a domain hosted by a third-party provider used by Hillary Clinton’s “personal office” began within hours of Donald Trump’s infamous call on July 27, 2016, for Russians, “if you’re listening,” to find her “missing” e-mails. (The “missing” e-mails were those that Clinton’s legal staff did not include, on grounds that they were personal and not work-related, in a turn-over of e-mails to the State Department from her private server.) The suggestion is that Trump’s public request triggered a Russian search for the “missing” e-mails.

I’m skeptical. Given the sophistication of the Russian hacking enterprise, it’s inconceivable to me that the Russians needed Donald Trump to give them the idea to search for the “missing” Clinton e-mails. Of course it’s possible that causation went the other way around – that Trump knew or suspected that Russians were about to hack Clinton’s e-mail network, triggering his public statement. But that scenario makes little sense either. Certainly if the Trump campaign were working covertly with the Russians, such a public call seems like a hugely unwarranted risk of exposure.

What stands out to me about the allegation is that it is unnecessary to the criminal charges set forth in the indictment. The allegation is made in this paragraph:

“The Conspirators spearphished individuals affiliated with the Clinton Campaign throughout the summer of 2016. For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.”

In other words, the July 27 hacking is given as an example of a broader effort to spearphish the Clinton campaign. That implies that Mueller’s investigators know about other examples, yet they chose this one for inclusion in the indictment. Furthermore, even if it was necessary to include the July 27 example, it was unnecessary to specify that the July 27 hacking attempt was made “after hours,” or that it was the “first time” that Russian hackers had attacked Clinton’s e-mail domain.

I’ve said that Mueller’s history of integrity is such that I don’t believe he manipulates indictments for political purposes. But I also don’t think that this informational tidbit made its way into the indictment without any purpose. Something is behind this, and for now we’ll just have to wait to find out what it is.

Many media commentators have talked about the possible relationship between the two events of July 27, 2016. Fewer commentators have picked up on another “coincidence” of timing. The indictment alleges that, on June 8, 2016, the Russian hackers set up the dcleaks.com web site, the DCLeaks Facebook page, and the Twitter account @dcleaks, as part of the Russian campaign to release Democratic campaign documents they had stolen. It was on June 9, 2016, that Donald Trump, Jr., Paul Manafort, and Jared Kushner met with Russians at Trump Tower in the expectation of receiving incriminating information about Clinton from the Russian government.

The Trump Tower meeting has always been something of a mystery: why would the Russian government go to the trouble of setting up and attending a meeting for the purpose of passing useful campaign information to the Trump campaign, but not provide the promised information to the campaign? I see two possible explanations.

The first is one I hypothesized at the time: that the meeting was not actually for the purpose of passing information to the Trump campaign, but was a “dangle.” In counter-intelligence parlance, a “dangle” is a test of a person’s interest in assisting the tester – in this case, to see whether the Trump campaign would take an opportunity to advance their electoral prospects, even if that opportunity required the illegal acceptance of assistance from the Russian government. If that was the Russians’ purpose, the effort was hugely successful: the Trump Jr. took the bait, the hook, the line and the sinker, and so did Manafort and Kushner. What the Russians may have done with that information remains unknown.

This indictment suggests another possibility for the meeting. The indictment alleges that, having compiled quite a mass of campaign documents, the Russians were looking for a way to release them. Rob Goldstone sent his now famous e-mail to Trump Jr. on June 3, 2016, asking for the Trump Tower meeting. Goldstone was acting at the request of the popular Russian singer Emin Agalarov, whose father, Aras Agalarov, is a real estate tycoon closely tied to Russian president Vladimir Putin. With that many degrees of separation between the Russian hacking campaign and Goldstone, the idea for the Trump Tower meeting must have originated days, if not weeks, before Goldstone actually sent his June 3 e-mail.

So the possibility exists that the Russians actually planned, or at least considered, releasing stolen documents to the Trump campaign well before the Trump Tower meeting actually happened, but that in that protracted interim they changed their minds, perhaps because they found a better way to release the documents. In this scenario, the Russians went forward with the Trump Tower meeting, but instead of sending useful campaign documents, they sent Natalia Veselnitskaya to complain about sanctions imposed against Russians by the Magnitsky Act.

The indictment raises one more matter of timing that hasn’t received any notice at all in the commentary I’ve seen. The indictment alleges that the Russian hackers began planning for the release of stolen documents no later than April 2016. It was on April 26, 2016, that George Papadopolous, a minor Trump campaign advisor, learned from one of his Russian contacts that the Russian government had Moscow had “dirt” on Hillary Clinton, in the form of “thousands of emails.”

I commented at the time that the FBI’s “statement of the offense,” which Papadopolous signed as part of his plea deal, seemed to be “deliberately ambiguous” about what happened next. I found it hard to believe that a wannabe like Papadopolous would not try to pump up his importance within the campaign by passing on the tip that Russians had a ton of dirt on Hillary Clinton. But the FBI statement of Papadopolous’s offense, while explicitly recounting how Papadopolous passed on other information he received, said nothing explicit about what he did with the April 26 information that Moscow had “dirt” on Clinton.

If Russian hackers began by April 2016 to look for ways to disseminate their stolen documents, it is possible that the approach to Papadopolous was part of that search – that the Russians seriously considered Papadopolous as a vehicle, or at least a facilitator, for such dissemination. If so, it appears that they decided against it, and I’ve speculated that they found Papadopolous to be the lightweight that he is, and therefore not the man they wanted to deal with. Of course there’s also the possibility that the Papadopolous contact was a dangle, that it produced sufficiently positive results to encourage the Russians to move up the chain to the top ranks of the Trump campaign, and thus to the Trump Tower meeting.

However seriously the Russians took Papadopolous, the indictment suggests that Mueller may consider Papadopolous to be a more important figure than has been publicly realized. Nine months after his guilty plea, Papadopolous has yet to be sentenced, implying that he is still providing Mueller’s investigation with useful information. The media has paid a fair amount of attention to the delays in Michael Flynn’s sentencing, but none I’ve seen to the delays in Papadopolous’s sentencing.

If, as seems likely, Papadopolous took the April 26 tip back to the Trump campaign, and if the campaign gave him a green light to pursue the matter – or if Papadopolous pursued it on his own – he presumably had further communications with Russian representatives about the Clinton “dirt.” Such further communications might explain why Mueller’s need for his cooperation has lasted this long. Whether the Mueller investigation will eventually produce charges that Trump campaign representatives engaged in “collusion” with Russian election interference may thus depend more than we previously realized on the minor functionary, George Papadopolous.

The indictment leaves a number of “undropped shoes” – so many that the undropped shoe seems has been the metaphor of choice for political commentators this weekend. One undropped shoe is the Russian hacking of Republican National Committee in 2015. We can only speculate why Mueller didn’t include that in the indictment – maybe he’s still unraveling exactly who did the hacking, when and how; maybe he’s withholding that indictment to avoid alerting investigative targets to the status of his investigation.

After the DCLeaks operation was exposed, the Russian hackers created the Guccifer 2.0 persona for further releases of stolen documents, including the handover of e-mails to WikiLeaks, which released them in 33 batches from October 6 to November 7, 2016.

One release of stolen documents was to an unidentified Congressional candidate, who asked Guccifer 2.0 for documents about the candidate’s opponent; Guccifer 2.0 complied. Guccifer 2.0 was posing as a Romanian individual, and the Russian hackers went to some lengths to make that pose seem authentic, so it’s not self-evident that a candidate who asked Guccifer 2.0 for stolen documents knew that the request was made to Russians. Still, the indictment indicates that the unnamed candidate solicited the receipt of stolen information, which is almost certainly a crime, and even if the candidate thought that Guccifer 2.0 was Romanian and not Russian, still the candidate was soliciting campaign assistance from a foreign national, which is also almost certainly a crime: another undropped shoe.

The indictment alleges that the defendants “communicated with U. S. persons about the
release of stolen documents.” The indictment specifies only one set of such communications, in August and September 2016, with an unnamed “U. S. person” widely believed to be Trump advisor Roger Stone. The indictment quotes two requests from Guccifer 2.0 to the “U. S. person” for an assessment of stolen documents posted publicly by Guccifer 2.0. The only response quoted in the indictment is, “pretty standard,” presumably meaning that the information in the stolen document in question was not noteworthy.

The indictment quotes a third communication from Guccifer 2.0 to the U. S. person: “please tell me if i can help u anyhow . . . it would be a great pleasure to me.” Again, the indictment does not allege that Stone knew he was dealing with Russians, but given Guccifer 2.0’s pose as a Romanian national, Stone must have known he wasn’t dealing with an American. Even if he bought Guccifer 2.0’s pose as a Romanian national, he must have known that he was being offered “help” by a foreign national, and, in context, it’s quite likely that Stone knew that the “help” offered related to the presidential campaign – which makes Roger Stone an undropped shoe. Some commentators have made much of the fact that Stone, despite his obvious importance to the Mueller investigation, has not been interviewed yet. Those commentators are inferring that Mueller’s team is deferring Stone until it has tightly wrapped up a case against him. That possibility makes Roger Stone another undropped shoe.

Finally, the indictment refers several times to unnamed, unindicted co-conspirators, both “known and unknown.” The previous indictment of Russians who ran the disinformation campaign similarly referred to other conspirators “known and unknown.” Obviously we have no way to know why those who are “known” weren’t indicted, and whether those who are “unknown” may yet become known – the last undropped shoe for today.

Announcing yesterday’s indictment, Deputy Attorney General Rod Rosenstein repeated the disclaimer he made in announcing the February indictment against the other group of Russians: the indictment makes no allegation that the Russian attacks had any impact on the 2016 presidential elections. And my response to that disclaimer is the same as my response to the same disclaimer last February.

The February indictment alleged that the Russians executed a well planned, well funded, long-term campaign of social media posting and advertising, supplemented by campaign rallies successfully promoted on-line. Yesterday’s indictment alleges that the Russians executed a well planned, well funded, long-term campaign of hacking the computers and networks of Democratic campaign officials and stealing huge volumes of documents, then developing and executing a long-term strategy of releasing those documents to the public.

Political campaigns pay good money for these kinds of activities: for advertising, rallies, and opposition research. Campaigns pay good money for these activities because it is universally believed that these activities influence voting. The possibility that zero voters were influenced by the Russian campaign is nil; it is certain that the Russian attacks had some effect. The fact that it is impossible to measure the size of that effect in no way implies that there was no effect.

I am quite certain that the Russian attacks had an effect on the 2016 presidential vote. Given the razor thin margin of the popular vote in the states that were decisive in the electoral vote, I think it is very possible that the Russian attacks made the difference between a Hillary Clinton presidency and a Donald Trump presidency.

Republicans who would wish away the Mueller investigation should be careful what they wish for. The intelligence consensus is that an important goal of the Russian attacks was to sew discord among Americans, to weaken faith in our electoral processes and therefore to weaken our faith in democracy itself. If that consensus is correct, then it is not self-evident that the next Russian attack will be against Democrats. It is plausible that Russians will determine that their interest in fostering American chaos is better served by promoting Democratic majorities in Congress, threatening to grind American national government to a halt.

 

Supreme Diversity

Until recently, membership in the elite corps of United States Supreme Court justices was almost exclusively limited to white Protestant men. Protestants held their majority for more than 200 years; white men hold theirs to this day.

Of the 113 justices who have served, 110 of them have been non-Hispanic white. In all of the Court’s 229-year history, only two African-Americans have served: Thurgood Marshall and Clarence Thomas. Marshall and Thomas served sequentially, so there have never been two African-American justices at the same time. Sonia Sotomayor is the only Hispanic justice to have served. No Asian-American and no Native American has ever been appointed.

Only four women have donned the black robe, all within the last 37 years: Ruth Ginsburg, Elena Kagan, Sandra O’Connor, and Sotomayor. The Court had two women on the bench from 1993, when Ginsburg was appointed, until 2006, when O’Connor retired. Ginsburg was then joined by Sotomayor in 2009, and, since Kagan’s appointment in 2010 there have been an unprecedented three women on the Court.

The first Jewish justice was Louis Brandeis, who took his seat in 1916. There were two Jewish justices twice in the 1930s, when Benjamin Cardozo overlapped at the beginning of his tenure with Brandeis, and at the end of his tenure with Felix Frankfurter. Not until 1994 did the Court again have two Jewish justices at the same time – when Stephen Breyer joined Ruth Ginsburg. Since 2010, there have been an unprecedented three Jews on the Court: Breyer, Ginsburg and Kagan.

Other than Christianity and Judaism, no faith has ever been represented on the Court.

Among Christians, Protestants were predominant until quite recently. Catholic justices were rare in the 1800s. Roger Taney was first, becoming chief justice in 1836. There weren’t two Catholic justices at the same time until 1898, when Joseph McKenna joined Edward White. It happened again when Warren Harding put Pierce Butler on the Court two years before McKenna retired. It didn’t happen a third time until 1986, when Antonin Scalia joined William Brennan.

Beginning with Scalia, five of eleven Supreme Court appointees have been Catholics. That’s not counting Thomas, who was raised as a Catholic, converted as a young man to his wife’s Protestant faith, then re-converted to Catholicism in the mid-1990s. It’s also not counting Neil Gorsuch, who was raised Catholic but married an Anglican woman and has attended Episcopalian services for about 17 years. Gorsuch speaks generally of his faith, but does not specify his religion. Even close friends and relatives don’t know whether Gorsuch considers himself to be Catholic or Episcopalian. Either way, Gorsuch counts among the Christian majority.

With Samuel Alito’s appointment in 2006, Catholic justices became a majority, and have held the majority since then.

Of Christian faiths, Mormons stand out perhaps most prominently as unrepresented on the Court. By contrast, for example, to the U. S. Senate, where 17 Mormons have served, including six current senators, there has never been a Mormon Supreme Court justice.

Only one justice declared himself to have no religious affiliation: David Davis, who was one of Abraham Lincoln’s appointees to the Court.

Protestants lost their Supreme Court majority upon Thomas’s conversion to Catholicism in 1995 or 1996. With the possible exception of Gorsuch, there hasn’t been a Protestant appointee since then. The last definitely Protestant appointee was David Souter, nominated in 1990 by George H. W. Bush.

Finally, of course, there has never been an openly gay justice. There have been speculations about the Court’s five life-long bachelors, perhaps most credibly about Frank Murphy, a Franklin Roosevelt appointee whose 40-year friendship with a fellow bachelor was documented in the 2001 book Courting Justice: Gay Men and Lesbians v. the Supreme Court.

Confirmation of Brett Kavanaugh’s nomination to replace Anthony Kennedy will change the Court’s ideology significantly, but it will change the Court’s demographics only by reducing the justices’ average age from 69 to 65 years. Kavanaugh, like Kennedy, is a Catholic non-Hispanic white man. If confirmed, Kavanaugh will be the Court’s 114th justice: its 111th non-Hispanic white, 110th male and 105th Christian justice.

 

 

The Conservative Supreme Court

With Brett Kavanaugh’s nomination to succeed Anthony Kennedy on the U.S. Supreme Court, Republicans hope to secure the most conservative Supreme Court since Franklin Roosevelt’s first term, when the Court invalidated much of FDR’s New Deal legislation. Driving opposition to the New Deal were four reactionaries nicknamed the Four Horsemen of the Apocalypse: Willis Van Devanter, appointed by President William Taft; James McReynolds, a Woodrow Wilson appointee; and Pierce Butler and George Sutherland, who were Warren Harding’s selections.

Not until his second term, in 1937, did Roosevelt get his first Supreme Court vacancy, created by Van Devanter’s retirement. Ultimately FDR made nine appointments to the Court, more than any other president besides George Washington, who, after all, was starting from scratch.

Media commentators’ consensus seems to be that conservative interest groups have orchestrated a highly successful 30-year campaign to move the Court to the kind of hard-right conservatism that is now in sight. But in truth the success of that campaign owes a fair amount to luck.

On the question of luck and the Supreme Court, I’ve observed that the last chief justice to be appointed by a Democrat was Fred Vinson, appointed by Harry Truman in 1946. All four of Vinson’s successors have been Republican appointees. And the only president in American history to serve a full four-year term and appoint no Supreme Court justices was Democrat Jimmy Carter. (By contrast, the nearly equally luckless Republican one-termer William Taft got to appoint six justices.)

Although Democrats have held the White House for 16 of the last 30 years, Democrats have been able to make just four out of ten Supreme Court appointments during that time. The numbers would have been even, five to five, had Republicans not refused to consider Barack Obama’s final nominee, Merrick Garland. But even that tactical success is indebted to luck: had Justice Antonin Scalia died a year or two earlier, it’s much less likely that even Senate Majority Leader Mitch McConnell would have had been able to hold the seat open through the rest of Barack Obama’s presidency.

The average age of Supreme Court justices when the last five presidents took office was just over 65 years. The average age as of the inauguration of the three Republicans (65) was actually slightly lower than for the two Democrats (66). But the number of justices over 80 years old on Inauguration Day has distinctly favored Republican presidents: six for Republicans and two for Democrats, and, not surprisingly, which justices are over 80 on a president’s first Inauguration Day turns out to be a pretty good predictor of which justices that president will get to replace.

So the really bad news is that with Kennedy’s departure there is only one octogenarian left on the Court – liberal stalwart Ruth Ginsburg, at 84 years old. Liberal Justice Stephen Breyer will be 80 next month, whereas the oldest conservative justice is Clarence Thomas, who is only 70 years old even though he’s been on the Court for almost 27 years.

In one respect, Republicans have been more tactical than Democrats in selecting their Supreme Court nominees. The average age of the six Republican appointees in the last 30 years (counting Kavanaugh) was just over 50, whereas the average age of the four Democratic appointees was just over 55. Democratic appointees ranged from 50 years old (Elena Kagan) to 60 years old (Ginsburg); Republican appointees ranged from 43 (Thomas) to 55 (Samuel Alito).

Whether younger appointees will serve longer tenures on average remains to be seen. The only one of the last ten Supreme Court appointees to leave the Court so far, David Souter, was just 51 years old at appointment but served only 19 years on the court. By contrast, Ginsburg and Breyer were nine and five years older at appointment, and have so far served 25 and 24 years.

I’ve said that Donald Trump’s Supreme Court will be the most conservative since the early 1930s. A lot of attention has justly been given to the risks such a Court poses to abortion rights, gay rights, voting rights and immigration rights. I think it’s useful to consider some of the New Deal-era decisions driven by the Four Horsemen in gauging the magnitude of the risks a Trump Court might pose.

One of my personal favorite New Deal-era decisions is Morehead v. New York, in which a five-to-four Supreme Court majority invalidated a minimum wage law because it interfered, without sufficient justification, with “the right to make contracts,” a right that is “part of the liberty protected by the due process clause” of the Fourteenth Amendment to the Constitution. For the majority, Justice Butler wrote:

“Within this liberty are provisions of contracts between employer and employee fixing the wages to be paid. In making contracts of employment, generally speaking, the parties have equal right to obtain from each other the best terms they can by private bargaining.”

In other words, employer and employee equally enjoy the constitutional right to bargain the terms of employment contracts, and as a general matter legislatures may not impose terms on those contracts. Equality of bargaining rights supersedes inequality of bargaining power.

The Supreme Court’s anti-New Deal and anti-regulatory decisions were largely overruled in the late 1930s. And modern economics has given us a much more sophisticated understanding than the Four Horsemen enjoyed about the vulnerabilities created by the inequality of bargaining power between employer and employee. So it is tempting to dismiss the possibility that even a Trump Court would restore pre-New Deal jurisprudence.

But we should underestimate neither modern conservatives’ determination to expand freedom of corporate action nor their willingness to subordinate concern for individual well-being to their concern for corporate “liberty.” Modern conservatives, after all, have devised a new constitutional right to discriminate in the name of religion – an achievement that would have awed and inspired opponents of 1960s-era civil rights laws. We owe to modern conservatives the corrosive theories that spending money constitutes constitutionally protected speech, and that corporations are people who enjoy First Amendment rights fully equal to the First Amendment rights of actual people – two theories that serve to concentrate enormous political power in the hands of the very rich – who, not at all coincidentally, are predominantly conservative and use their concentration of power to further conservative causes. To modern conservatives, private might makes right, and government intervention to mitigate the consequences of private inequality, especially economic inequality, is generally impermissible.

Conservative zeal to overturn Roe v. Wade is unhindered by the fact that Roe is a precedent of 45 years’ standing. If 45 years is not enough time to put Roe beyond their reach, why would 80 years’ standing put New Deal-era precedents out of range? Even before Justice Kennedy’s departure, the Supreme Court upended 80 years of constitutional precedent to conclude that the individual mandate in the Affordable Care Act exceeded Congressional authority to regulate commerce, in a five-to-four decision that Justice Ginsburg, in dissent, compared to the Four Horsemen’s pre-New Deal decisions. (The Affordable Care Act survived because a five-to-four majority of justices found that the individual mandate was a valid exercise of Congressional authority to impose taxes.)

Brett Kavanaugh is considered to be an “originalist,” as was Justice Scalia and as are Justices Neil Gorsuch and Clarence Thomas. An originalist claims to find the meaning of a constitutional provision in the intentions of those who wrote and ratified the provision and in the prevailing understanding of the constitutional provision at the time of its ratification. Even if a constitutional provision uses a term the common meaning of which evolves over time – like “unreasonable,” or “cruel and unusual” – the meaning of the constitutional provision remains what it was when it was ratified.

Whatever its merits as a legal philosophy or as a theory of constitutional interpretation, originalism minimizes the value of precedent. If an originalist believes that a Supreme Court precedent is not consistent with the constitutional text or contemporaneous understanding of the text, then the precedent is vulnerable, and vulnerability does not diminish with age. Originalism thus re-opens every constitutional issue for re-litigation, no matter how well- or long-settled the issue was.

Although its advocates present originalism as neutral and objective, divorced from the political ideologies and policy preferences of its practitioners, originalists almost always come out on the conservative side of constitutional questions. Even the originalist’s supposed commitment to constitutional text is no barrier to achieving the originalist’s ideological goals. Originalists were able to conclude, for instance, that the right to bear arms has nothing to do with a well-regulated militia.

With a minimum of effort, an originalist can put together an argument that many of the Supreme Court’s equal protection and due process precedents fall beyond the intentions of those who wrote and ratified the Fourteenth Amendment. An originalist can put together an argument that many of the Supreme Court’s precedents on criminal trial procedure and protections of criminal defendants were not intended by those who wrote and ratified the Bill of Rights.

So it’s not just abortion rights, gay rights, voting rights, and immigration rights that are threatened by a Donald Trump Court. Every constitutional right, every constitutional rule, is now officially up for grabs.

 

United States v. Nixon, Revisited

On March 1, 1974, Department of Justice Special Prosecutor Archibald Cox obtained a federal grand jury indictment against seven associates of then-President Richard Nixon. The President himself was not indicted, although he was named as an “unindicted co-conspirator.”

Trial of the seven defendants was scheduled for September 9. In preparation for trial, Cox issued a subpoena for tape recordings of specified Oval Office conversations. President Nixon went to court to oppose the subpoena, claiming, among other things, that the president is entitled by virtue of the doctrine of executive privilege to absolute confidentiality in his communications, and that the constitutional separation of powers precluded the judicial branch from reviewing the chief executive’s assertion of the privilege.

The federal trial judge, John Sirica, rejected Nixon’s arguments and ordered that the tapes be presented to him for “in camera” review, so that Judge Sirica could listen to the tapes and decide which portions should and which should not be given to Special Prosecutor Cox. President Nixon appealed to the federal Court of Appeals.

Consistent with the urgency of the situation, the Supreme Court agreed to hear the case without waiting for the Court of Appeals, and the case was argued during the Court’s summer recess, on July 8, 1974. Just 16 days later, the Court delivered its firmest possible rejection of President Nixon’s arguments. The Court unanimously upheld Judge Sirica’s order, and the opinion was written and delivered from the bench by Chief Justice Warren Burger – a Nixon appointee. Not only were there no dissents, there weren’t even any separate concurring opinions, meaning that all eight justices agreed not just with the result, but also with Chief Justice Burger’s reasoning. (Associate Justice William Rehnquist recused himself, presumably because he had been associate counsel in the Justice Department during the Nixon administration.)

The Court rejected both grounds for Nixon’s claim of absolute executive privilege: “neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

Furthermore, the Court turned Nixon’s separation of  powers argument around on him. Just as Nixon asked the judicial branch to respect his exercise of his executive duties, Nixon must respect the courts’ exercise of their judicial duties. And “the primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions.”

What’s important about the case, titled United States v. Nixon, is that the President was not a defendant in the criminal case at hand. The Court’s holding is that neither executive privilege nor separation of powers immunizes even the president of the United States from providing evidence needed for the prosecution of a criminal case.

Donald Trump’s lawyers – chiefly former New York City Mayor Rudy Giuliani – have worked hard to cast Special Counsel Robert Mueller’s investigation into Russian election interference as an investigation into criminal wrongdoing by President Trump himself. Most recently, Giuliani announced that Trump would agree to be interviewed by Mueller’s team only if Mueller shows that he has evidence of criminal wrongdoing by the President.

Regrettably, I think, many who have argued that Mueller should be allowed to complete his investigation unhindered have accepted Giuliani’s casting of the Mueller investigation as a criminal investigation of Donald Trump. It’s regrettable because it’s inaccurate, and it’s doubly regrettable because it fosters a public misperception that if the investigation ultimately proves no criminal wrongdoing by Trump, then it will have proved nothing at all.

I have pointed out that the logically primary purpose of the Mueller investigation is to determine the full extent of Russia’s interference in the 2016 election – what they did, how they did it, and how it can be prevented from happening again. In its primary purpose, the Mueller investigation is a counter-intelligence investigation.

The logically secondary purpose of the investigation is to charge and prosecute any person, Russian, American or otherwise, who may have committed federal crimes in the course of Russia’s interference with our election. In this secondary purpose, the Mueller investigation is a criminal one. And in fact sixteen Russian individuals and entities have been indicted for election interference. No Americans have yet been indicted on “collusion” charges, although a number of Americans have been indicted for lying to investigators about their Russian connections, and for other crimes uncovered during the investigation.

The fruits of criminal investigations often become public even before the investigations are completed, as indictments are announced and as prosecutions proceed. Therefore we know some of what Mueller’s criminal investigation has found. But counter-intelligence investigations do not necessarily produce public information before the investigations are completed, and not necessarily even then. In this case, some of the fruits of the counter-intelligence investigation have been revealed in public documents, most importantly the indictments of 16 Russian individuals and companies for their roles in the election interference. But it is possible, and I think it is very likely, that Mueller’s counter-intelligence investigation has found a great deal more than what has been revealed.

Although we know that Mueller has developed evidence of fairly extensive criminal wrongdoing, we don’t know yet whether Mueller has developed evidence of criminal wrongdoing by Trump himself. I’ve said that I think it’s unlikely that Trump colluded with Russians, at least in the sense of Trump talking directly with Russian officials to work out a joint action plan for winning the 2016 election.

On the other hand, I think it’s likely that Trump knew, at least generally, that Russia was seeking to aid his campaign, since I think it’s likely that Trump knew about the infamous Trump Tower meeting at which Trump campaign officials expected to receive Russian government information that would be damaging to Hillary Clinton. And if Trump knew about the Trump Tower meeting, he probably knew both that his campaign was open to collusion with the Russians, at least in the form of receiving the proffered information, and that, by taking the meeting, his campaign had revealed to the Russians its openness to such collusion.

I also think it’s plausible that the Russian government has leverage over Trump. That leverage may have as pedestrian a source as Trump’s long-standing desire to build a Trump Tower in Moscow. It may have as idiosyncratic a source as Trump’s affinity for powerful authority figures. It may have as lurid a source as the alleged “pee tape,” or other evidence of improper or embarrassing conduct by Trump.

I don’t really know whether any of that could create criminal liability on the part of President Trump. But the lesson of United States v. Nixon is that Trump’s obligation to cooperate with the Mueller investigation is not determined solely by whether Trump is a target of the investigation, or whether the investigation has as yet developed evidence against Trump.

Even absent criminal liability, the President is an important witness for Mueller to interview. No one is better positioned than Trump himself to explain his obvious deference to Vladimir Putin. If Russia has leverage over Trump, it’s critically important for Mueller’s counter-intelligence investigation to understand how Russia developed and used that leverage, regardless whether Trump bears any blame in it.

Trump can explain why his campaign hired Paul Manafort, a has-been of American politics whose primary qualification seem to have been his connections with pro-Russian Ukrainians. Trump may be able to explain why Manafort was willing to take the job without pay at a time that Manafort was desperate for money. Trump can explain why his campaign selected pro-Russian foreign policy advisors like General Michael Flynn, Carter Page and Roger Stone, and why he selected Flynn to be his first national security advisor.

Trump can shed light on what his campaign staff did, what he instructed them and what they reported to him. Trump can explain his ample Twitterature, what prompted various tweets and what he meant by them. If Trump’s former attorney, Michael Cohen, is prosecuted, Trump will almost certainly be an important witness, whether for the prosecution or for the defense.

Others have pointed out that Trump and Giuliani must be very concerned about the downside potential of an interview with Mueller’s investigators. One speculation is that Trump has something very substantial to hide. Another is that his well-documented “practiced ignorance” and habit of “truthful hyperbole” would make an interview a “perjury trap.” The cover for Trump’s unwillingness to sit for an interview has been the claim that the Mueller investigation is biased, a tool of the “deep state” and the Clinton campaign, and therefore that Trump can’t get a fair shake from Mueller.

Even without the support of actual facts, the logic of the argument only works if Trump is a target of the Mueller investigation. The argument fails even on its own terms if Trump is needed as a witness, whether to the counter-intelligence or to the criminal component of the investigation – which he almost certainly is.

 

#MeToo in the Jury Room

For my entire legal career, I wanted to serve on a jury, the better to understand something of importance to my profession: how a jury reaches a verdict. I served ten years as a judge and found that much of the profession’s received wisdom about How Judges Think is folklore; I’ve wondered if the received wisdom about How Juries Think is similarly extra-factual.

For the first half of my career, lawyers were exempt from jury service in New York, along with members of a couple dozen other professions. Those exemptions were repealed in 1996, and in the second half of my career I was called to jury service three times, but I was never seated on a jury.

This month, just short of two years after I retired, I reported for my fourth jury service – this time in New York City Criminal Court, which hears misdemeanor cases – felonies are tried in New York State Supreme Court. Late in the morning, 30 of us were called to a courtroom to be considered as possible jurors.

Before we were questioned individually, we were asked if there was any reason we couldn’t serve. More than half of the jury pool pleaded excuses, the most common being limited understanding of English. Business and employment reasons were next, and then health reasons. Some of the excuses seemed genuine; some seemed to reflect only a desire to avoid jury service. For instance, two of those who claimed limited facility with English joked fluently with other potential jurors in the waiting room. Nine of the 30 potential jurors were excused; neither of the fluent jokers was among them.

The remaining 21 of us were individually questioned in random order; I was the third to be questioned. After all 21 of us had been questioned, we were excused to the waiting room while six jurors and two alternates were chosen. Neither of the two potential jurors who were questioned before me were seated on the jury, so now I was first in line, which made me not only a juror, but the jury foreperson. I was happy to serve on a jury, even though it would no longer serve my ex-career, but I was not happy to be the foreperson – how much could I learn about how a jury deliberates if I was the one moderating the deliberations?

The case involved five misdemeanor charges. The defendant, a man separated from his wife, was charged with violating an order of protection by visiting his wife’s apartment, albeit with her initial acquiescence. His wife, the complainant, alleged that while he was there he twice grabbed her vagina, and therefore he was charged with forcible sexual touching and sexual abuse. Based on the touching and on arguments between the defendant and his wife and between the defendant and his adult daughter, he was charged with harassment. And because all of this happened in the presence of the defendant’s four-year old grandson, he was charged with endangering the welfare of a child.

Several things impressed me about the experience. First, the jury was diverse, although women were slightly underrepresented. The jury members were four men and two women, and the alternates were two men. Of the eight, two were non-Hispanic white, two were Asian-American, two were Hispanic, and two were African-American. At least three were first-generation immigrants. I was the oldest and only retired juror, the other white male being just a couple years behind me, and the youngest two were college students. There were two airline employees (one works on the tarmac, the other inside the terminal; the latter also does some plus-size modeling), a subway electrician, the two students, a security guard (who also does some amateur filmmaking), a clerical employee who never said much about her job, and me, the retired lawyer. Four of the jurors are union members, three not, and one didn’t say.

Second, my experience did not bear out the widely held belief that the prosecution enjoys enormous advantages in resources over defendants. The assistant district attorney in our case seemed to be relatively young – not right out of law school, but not highly experienced, either. The defense attorney, a veteran of the Legal Aid Society, obviously had quite a bit more courtroom experience.

The judge, herself relatively new to the bench (appointed less than three years ago by Mayor Bill de Blasio), leaned harder on the prosecutor than on the defense attorney in applying evidentiary and procedural rules, which no doubt made the prosecutor’s job harder. That said, an experienced trial attorney foresees the possibility of adverse rulings and prepares back-up lines of attack. That wasn’t the case at several points in our trial.

Because the defendant was represented by a Legal Aid Society lawyer, he didn’t have the burden of paying for his defense – ability to pay being probably the most important single reason for an imbalance between prosecutorial and defense resources. The standard line on assigned counsel is that they are overworked and underpaid, and the lore is rife with anecdotes of lawyers trying cases just minutes after being handed case files. But the defense attorney in this case was well versed in the relevant facts and law, although he hadn’t mastered the names of all of the people involved as well as might be hoped.

My third impression is that jurors are not as easy to read as trial lawyers universally think they are. I had a chance to talk briefly to the defense attorney after the trial was over, and I mentioned that two jurors, including the one sitting next to me, were very favorable to his case. He was surprised, he said, because that juror sat glaring at him with his arms crossed throughout his closing argument. I laughed. Juror #2 wasn’t glaring at the defense attorney out of hostility to his case; he was glaring at him because he wanted the freakin’ trial to end already, and by the third day of trial he was complaining under his breath to me at every opportunity about how long the whole damned thing was taking.

My fourth impression is how distressingly little my jury pool members wanted to serve. I mentioned that more than half of the original 30-member jury pool tried to get out of service with excuses of varying degrees of merit. Several of the jurors who were seated for the trial complained about the slowness of the trial, the inconvenience to our personal lives, or both, beginning right from the first day of the trial. Only two of us expressed interest in the trial, or commented on the importance of jury service.

I wouldn’t quite say that you can’t have self-government or democracy without the right to trial by jury, but I would say that jury trials are an important feature of American self-government and democracy. A juror, no matter how poor and no matter how humble, is vested with the authority to thwart the government’s exercise of one of its most awesome powers: the power to take a person’s freedom, or even a person’s life. The juror’s authority is so complete that it is almost entirely beyond accountability – except for corruption and certain kinds of bias, a juror can never be questioned by the government that he has defied during the jury’s deliberations. Jury service is a majestic thing, and it was discouraging to see how little my jury pool was interested in it.

I have to grant, then, that my fifth impression runs somewhat counter to my fourth one: the jurors paid attention to the testimony, and to the documents put into evidence. We also paid attention to the judge’s instructions, even if we found them difficult to follow – she spoke too quickly in reviewing the legal elements of the charges, and she spoke in a tone bordering on boredom that caused her voice to drop to the point that we had trouble even hearing her at times. There was a lot of redundancy in her instructions, and at least one self-contradiction.

In my brief post-trial chat with the defense attorney, he told me that he was especially concerned to pick jurors who understood the burden of proof in criminal cases – that it is the prosecution’s obligation to prove each element of a crime beyond a reasonable doubt, that the defense bears no obligation to prove anything at all, and that the jury may not draw any conclusion from the lack of evidence from the defense, including the defendant’s choice not to testify. (In our case, the defense presented no witnesses and no documents.)

His concern about the burden of proof explained why he allowed me as a juror. Although a retired lawyer and former judge might be a problem in some respects, he expected that I would understand and comply with the judge’s instructions on the burden of proof.

And it all did come down to burden of proof. We had testimony from the defendant’s wife and daughter, from a friend of the daughter’s who was visiting at the time, and from one of the two police officers who responded to the 911 call from the apartment and made the arrest of the defendant. We heard from everyone who was in the apartment that night except for the four-year old grandson and the police officer’s partner. In addition, we had a cell phone video, without audio, made by the daughter’s friend; we had the order of protection the defendant was accused of violating; and we had a transcript of the court proceeding in which the order of protection was issued, indicating that the defendant was present when the order was issued and therefore that he knew about it.

We voted to convict the defendant of criminal contempt, for his violation of the court order, in just a few minutes. As foreperson, I intentionally drew that discussion out, carefully insisting that each juror state his or her opinion and reasons for it before we formally voted on it. I did this because I wanted to set a standard of deliberation for the other charges that were less clear-cut.

In that respect, I failed. We agreed that the forcible touching and the sexual abuse charge came down to the same question: whether the prosecution had proved beyond a reasonable doubt that the defendant had grabbed his wife’s vagina. The wife had testified that the grabbing occurred in the bathroom, where the grandson was bathing, as the defendant and his wife were arguing about her attentions to another man. There were no other witnesses to the alleged grabbing – the daughter and her friend were in another room, and the video by the daughter’s friend made came later.

The grabbing allegation was therefore completely uncorroborated – if we convicted, it had to be based on the wife’s word alone. I went into deliberations ambivalent on the point, open to persuasion from either side. I wanted to have a serious discussion about it.

I tried to follow the model I had just created with the criminal contempt charge – individual statement of each juror’s opinion and the reasons for it. What happened instead was that the other white male juror, who was probably the strongest personality in the room, and easily the most outspoken, jumped right in with his adamant conclusion that the proof was not there; that absent corroboration there was a reasonable doubt whether the wife had told the truth. Initially I couldn’t get him to explain his doubt, except to say some version of, “How do we know she didn’t make it up?”

I went around the rest of the jury to get everyone’s opinion. The other two men quickly and almost as adamantly took the “reasonable doubt” side of the question, and proved just as resistant to my calls for explanation of the doubt as the first juror had. The two women started with statements that they were inclined to believe the wife, but neither of the women was as forceful as I had hoped they would be, and within just a few minutes they conceded that the wife’s testimony alone was not proof beyond a reasonable doubt.

On my turn to speak, I argued that many people are convicted based on a single witness’s testimony. I argued that certain types of crimes, including sex crimes, tend to be committed with no witnesses aside from the complainant. I argued that we can’t let criminals guarantee their acquittal by the simple device of committing crimes privately.

At that point, the other white male juror pointed out that the video showed the defendant put his arm around his wife during the argument. He insisted that this was inconsistent with her claim to have been grabbed in the vagina. I disagreed; I argued that the wife was clearly trying to comfort her daughter during the argument with the defendant, and probably wanted to keep things from getting out of control. When the defendant put his arm over her shoulder, she didn’t respond – she stayed standing as she had been, one hand on her hip. She was clearly not friendly to her husband’s gesture, but she made no overt effort to disengage from it, either.

I got little support from the other jurors. One of the female jurors made it worse, saying that if someone grabbed her vagina and then put his arm around her, she’d punch him in the face. The fact that this juror is much younger and much larger, and a much stronger and feistier personality than the complainant made no difference.

After that much discussion, we all agreed that the wife was “probably” telling the truth. I remained ambivalent whether that probability left “reasonable doubt,” but it was clear that none of the other jurors was still even ambivalent about it – discussion had clearly hardened the consensus for acquittal on the forcible touching and sexual abuse charges. Ultimately I went along with that consensus.

There was no testimony that the grandson saw the alleged vagina grabbing, or even was in a position to see it, and in any event we hadn’t concluded beyond a reasonable doubt that the grabbing happened at all. So we couldn’t conclude that the alleged grabbing in the presence of the grandson constituted child endangerment. And we quickly agreed that the argument we saw (but didn’t hear) on the cell phone video was relatively mild; even crediting the testimony that the argument got loud, we had no trouble concluding that arguing in front of the grandson was not criminal endangerment of a child.

Finally, we agreed that the defendant was guilty of harassment of his wife – not because of the alleged grabbing, but because the testimony was clear that the defendant was repeatedly asked to leave but remained and continued hectoring his wife about her relationship with another man, all in the context of being in his wife’s apartment in violation of an order of protection.

The total time of our deliberation was 45 minutes.

After several days’ reflection, I think we reached the legally correct verdict, but I also think we failed in our obligation to “deliberate.”

I think we reached the legally correct verdict, meaning that we convicted the defendant on the charges that were proved beyond a reasonable doubt and acquitted on the other charges. But I’m unhappy because I’m pretty confident that the three other men on the jury gave less credence to the complainant’s accusations than they might have given to a man’s uncorroborated accusations in a different context – even if a more “woke” jury might have ended up in the same place after a fuller deliberation. I didn’t find it especially rewarding or satisfying to acquit a defendant on charges that we all agreed were “probably” true, and I’m quite unhappy that some might take our verdict as yet more evidence that men can’t be counted on to fairly consider women’s complaints of sexual abuse. The defense attorney clearly took the verdict as a victory, and, judging by her facial expression during the announcement of the verdict, the prosecutor apparently took the verdict as a loss.

I was unable to find the prosecutor after the trial to give her a little more of the nuance than a simple “guilty or not guilty” verdict conveys. She argued in her closing statement that the defendant went to the apartment out of jealousy over his wife’s friendship with another man, and that he grabbed her vagina as a demonstration of control: “this belongs to me, not to him.” I think she was probably right, and therefore I think the defendant probably got away with a sex crime.

Intellectually, I understand that the “beyond a reasonable doubt” standard is a bulwark of American democracy and individual freedom, an important check on government overreach, and, of course, a constitutional mandate. But I also understand that doubts have a mysterious way of seeming more reasonable when it is a woman’s complaint that she has been sexually abused that is under consideration. And I can’t help wondering if the jury would have given her testimony more credence if her complaint had been that the defendant sexually touched their four-year old grandson in the bathtub – or whether the jury would have been so much more revolted by that allegation that doubts about the credibility of a woman’s accusation against a man might have seemed decisively less reasonable.

 

Sometimes Politics is Still Local

The media punditocracy is all agog about yesterday’s upset victory by an insurgent newcomer over an establishment powerhouse in New York’s heavily Democratic 14th Congressional district. To be sure, it was a stunning upset: first-time candidate Alexandria Ocasio-Cortez beat long-time incumbent Joseph Crowley, even though he vastly outspent her and even though his chairmanship of the Queens County Democratic Party gave him access to an army of campaign foot soldiers.

Ocasio-Cortez didn’t just beat Crowley – she whomped him, by 15 percent of votes cast. Crowley thus became the very first Democratic member of Congress to lose a primary vote in 2018. And since any event makes for bigger and better news if it reveals a trend, the commentariat dutifully found a trend for the upset to reveal: insurgent progressives pose a nationwide threat to the Democratic establishment.

But sometimes a political race says more about the candidates than is says about national trends. Crowley has been an increasingly bad fit for his district over the years, and Ocasio-Cortez is a very good fit for the district.

Back in 1998, when what is now the 14th district was the seventh, its incumbent was Thomas Manton. Manton was an old-school Democratic machine politician generally more attentive to patronage than policy. The only son of Irish immigrants, Manton started out as a New York City cop. He was elected to the New York City Council in 1970.

In those days, the Council was not an especially important legislative body; the city was run by the mayor and the Board of Estimate. The Council devoted most of its time to renaming city streets and rubber-stamping the city’s annual budget. One of the very few important legislative issues the Council handled during Manton’s 14-year tenure was the so-called Gay Rights Bill, a proposal to prohibit employment and housing discrimination based on sexual orientation.

The anti-discrimination proposal first came before the Council in 1970, the year after the Stonewall riots gave birth to the modern gay rights movement. The bill was rejected that year and every year through 1985. It generated fierce religious opposition, most powerfully from the Catholic archdiocese and orthodox Jewish rabbis, both of which wielded considerable influence in the Council. Council Member Manton was a mainstay of the opposition throughout his tenure.

In 1978, Manton ran for Congress but lost the Democratic primary to Geraldine Ferraro. Six years later, Ferraro ran for vice president on Walter Mondale’s ticket, and Manton won her House seat. He resigned from the Council, which, along with a couple of other key personnel changes in the 1985 elections, enabled the anti-discrimination bill finally to pass in early 1986.

In 1998, after the Democratic primaries, Manton withdrew his candidacy for re-election – but he waited until the last day that a candidate could remove his name from the ballot. Under those circumstances, New York election law provided for the party organization to select the withdrawn candidate’s replacement on the ballot. And because Manton was not only a Congressman, but also the chairman of the Queens County Democratic Party, Manton was able to choose his replacement: Joe Crowley, a long-time loyalist from a family of long-time loyalists to the Queens Democratic machine.

The Crowley apple didn’t fall very far from its tree. He remained a machine politician, replacing Manton as chairman of the Queens organization after Manton’s death in 2006. Crowley worked the back rooms effectively. He won assignment to the powerful House Ways and Means Committee. By 2013 he was the vice chair of the Democratic Caucus, and he became the chair in 2017.

Crowley is good at the inside game, but he is not especially fluent in grass-roots issues. A middle-aged white man in an increasingly non-white district, and a fairly stodgy personality, he is out of his element on the streets of his district. He presses all the requisite progressive buttons, but he never conveys much passion or conviction. He has little connection to his constituency outside his narrowing base.

Alexandria Ocasio-Cortez comes from the Bronx portion of the 14th Congressional District. She worked as an organizer for the Bernie Sanders presidential campaign in 2016, and therefore not surprisingly her 2018 campaign is founded on progressive issues like Medicare for all, tuition-free public college education, and a federal jobs guarantee. Her connections to grass-roots progressive causes are deep and personal, not the check-list connections of Crowley’s candidacy. Ocasio-Cortez was endorsed by Black Lives Matter and MoveOn, among other progressive organizations. She ran an aggressively pro-immigrant campaign in a district that is two-thirds Hispanic and Asian-American. She pointedly refused corporate campaign contributions, and although Crowley outspent her by an almost incomprehensible margin, Ocasio-Cortez more than compensated with effective use of low-cost social media – which of course fits perfectly with her positioning as a voice for change from a new generation.

Crowley attended only one of the scheduled television debates with Ocasio-Cortez. He sent a stand-in to the other debate, a disdainful move for which the New York Times editorial board excoriated him. Crowley chose a Hispanic woman to be his stand-in, which must have been intended as a gesture of inclusion – an effort to blunt Ocasio-Cortez’s appeal to Hispanic voters – but, I suspect, came across to the Hispanic half of his constituency as condescending.

So while Crowley’s loss to Ocasio-Cortez was certainly stunning, it doesn’t necessarily indicate that establishment Democrats generally are in trouble from progressive insurgents across the country. Indeed, the fact that Crowley is so far the only House Democrat to lose a primary suggests pretty strongly that his loss is not part of a national trend.

Full disclosure: I voted for Ocasio-Cortez in yesterday’s primary. I know, you must be shocked.

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