Saturday, December 31, 2016

Yin and yang of decedents

“I would like to use the law of this land to do everything I possibly can to protect America's children from abuse and violence and to give to each of them the opportunity to grow to be strong, healthy and self-sufficient citizens of this country.” — Janet Reno, Attorney General of the United States from 1993 to 2001

I'VE PONDERED for days about what to write about in this last post of 2106. So many things to discuss, so little time. 

I finally settled on two pieces from the yearend New York Times Magazine series called The Lives They Lived that features short homages each year about people we've lost in the previous 12 months. Some of them are household names, some not, but they all have led unique lives in one way or another . . . for good or for ill. 

You may recall I've selected some to share with you in previous years. This time I've chosen a couple of opposites — at least they are so for me; one person I respecteded and was sad to lose, and the other whose passing I celebrated. In fact I cheered so unabashedly (Scalia Croaks and I Get to Be Glad) that at least one shocked reader took me severely to task. 

But I make no apologies for how I felt then or now. This particular individual who thankfully left us, inflicted no small amount of damage to our nation and the lives of our fellow citizens. My only disappointment is that he didn't begin conferencing with the worms sooner.


B. 1938

What you learn when you ride shotgun with the former attorney general.

By Michael Paterniti

December 21, 2016

Central Florida is the in-between you make go away by pressing a little harder on the gas. Orange groves at dusk, sky full of pastel color, and Janet Reno is driving the car, a rental. It’s 2002, Reno is running for governor of Florida, and I’ve spent days riding shotgun with her, reporting for this magazine, accompanying her to various campaign events — most of them populated by older women, bright and warm women with structures of freshly coifed hair, who fawn over Janet Reno, who knew her mother, an investigative reporter for The Miami News. To them, Janet Reno is the daughter who left Florida to fix America, serving eight controversial years as attorney general under Bill Clinton, and has now returned to fix the Sunshine State.

Just “Janet” to the women — and “Janny,” the oldest of four siblings, to her family — she is leading in the polls of the Democratic primary, up at one point by almost 30 points. Her unusual, grass-roots campaign has been dubbed “The Little Red Pickup-Truck Tour,” for the fact that she has mostly crisscrossed the state alone in her Ford Ranger. She seems to have no advisers, no pollsters, no bodyguards, no team or entourage to speak of.

During her tumultuous tenure as attorney general, the decisions came in a furious rush: Reno oversaw a 51-day standoff with Branch Davidians in Waco, Tex., and authorized the F.B.I. to storm the compound, resulting in the deaths of more than 70 people. She ordered the forced seizure of Elián González, which led to the famous image of a federal agent pointing his automatic weapon at the screaming 6-year-old Cuban boy. She assigned a special prosecutor to lead an investigation of Whitewater — a criminal inquiry eventually overtaken by Kenneth Starr, whose expanded powers resulted in the revelation of Bill Clinton’s affair with Monica Lewinsky. And she successfully prosecuted the Unabomber, Ted Kaczynski, as well as the Oklahoma bombers, Timothy McVeigh and Terry Nichols. As Reno became the face of each new upheaval, The Washington Post called her “arguably the most powerful appointed woman in American politics,” adding, “She is doubtless the best-known attorney general since Robert F. Kennedy.”

In Florida now, it’s just Janet, citizen/adventurer/candidate, getting gas, shambling in for a chocolate bar. She materializes out of thin air at white picnics and black churches, Hispanic parades and shopping malls where everyone mixes, all 6-feet-1 of her tumbling into the sun in her thick-lensed glasses and mail-order, shoulder-padded dresses, speaking plainly, in a deliberate, almost dulling lingua, about the environment and education, hearkening backward to an Old Florida she would like to reclaim. “I’m not fancy,” she has said in the past. “I’m what I appear to be.”

Back in Washington, many people disputed and opined about who she appeared to be. She was attacked as both a Clinton lackey and a Clinton enemy, when in fact her only allegiance was to the law. She was desexualized and then re-sexualized as a man in drag, a lesbian, a freak — or as her sister, Maggy, once put it, into “a large person with boots on.”

Here’s how she really appears in the lightly freckled flesh, though, among people who know her best: She is curious and open; whip-smart and a little war-weary; afflicted with the tremors of Parkinson’s, not defined by them. She announced that she had the disease during her term as attorney general, and after her medication kept her up at night, decided to cut the dosage. A colleague, wondering aloud about how she might appear to the public, said that she replied, “So I’ll be an old lady who shakes.”

For all her years of tough talk at Justice, you can’t help being struck most by a certain strain of gentleness in her, how she talks lovingly about her deceased mother, about the wonderful old pinto pony named Tony she had when she was a kid growing up in the cypress bungalow, under the gumbo limbo trees, of what was then rural Miami. In her are the echoes of Annie Oakley and Pippi Longstocking, people of the frontier, who yearned for it. When her silverware clicks against the plate and she’s asked about her disease, she says that she knows how it will end, with the loss of her ability to speak and people feeding her, but until she’s incapacitated, she intends to keep living life as fully as possible, visiting friends and family, road tripping and kayaking.

On we drive, then, through grove land and orchards, headed to her sister Maggy’s, for a good dinner and a day off on the coast, when something unexpected occurs: Strobe lights flash from behind, a siren whoops once. Until now, Janet Reno has been happily telling stories, about the old family dynasties that rule Central Florida. But with the sound of the siren, her expression turns glum. The color drains from her face, and by the time the trooper opens his door and approaches in clipped strides to the driver’s-side window, she seems about to hyperventilate. He doesn’t make eye contact to say hello or ask a question. He just holds out his hand, grunts, “License and registration.” Janet Reno, in turn, dutifully fumbles for both. It’s possible she has never been on the wrong side of the law. Ever. And now she has been caught, by this eager beaver, maybe 10 miles over the speed limit.

When he goes back to his cruiser, we sit for an interminable moment in silence, except for when she sighs and says, “Oh, well.” When the trooper returns, it’s as if he has been injected with the fluorescent serum of polite friendliness. “Ms. Reno,” he says, deferentially, looking straight in her eyes. “I didn’t realize it was you. I, I. ... It’s a pleasure to meet you out here.”

“I know I was speeding,” says the former attorney general. “I don’t have an excuse.”

“I’m only giving you a warning today — ”

“No,” she insists. “Please treat me like anyone else.”

“Anyone else would get a warning, too,” he says, though that seems likely false. “I want to thank you for your service.”

Janet Reno thanks him for his service. “I just need you to be careful out here,” he says, then he waits obligingly, with a tip of his cap, as we pull from the shoulder, to the clicking sound of stone under the wheels. Janet Reno never lets the speedometer’s needle climb above 55, all the way to Maggy’s, where there’s food and a familiar bed. “He probably should have given me that ticket,” she tells her sister later.

The next day, she shows me how to roll a kayak. She will eventually lose the primary by less than 5,000 votes when the Democratic establishment, deciding that she’s aloof and convinced that her controversial time in Washington has made her unelectable, throws its support behind her challenger. Over the next 14 years of being a Floridian, she will ultimately be relegated to a wheelchair and succumb to the disease, surrounded by loved ones at the end. But on this bright day, we boat the St. Lucie inlet, to snorkel. She applies sunscreen to her fair skin. In her bathing suit, she smiles unabashedly and dives in, leaving a tiny splash. Among the coral and teeming aquatic life, she flutters her large feet and floats in unseen currents, borne forward, almost without trying. Her power, I realize, is this easy oneness with a higher law. And that’s how I’ll choose to imagine her at the end, unspeaking but wholly aware, gracefully slipping through.


B. 1936

He claimed objectivity when it came to originalism, but he was a skeptic about science.

By Emily Bazelon

December 21, 2016

In 1981, the Louisiana Legislature passed a law that forbade public schools to teach evolution without also instructing students on “creation science.” The Creationism Act was challenged in court for breaching the constitutional wall between church and state, in a case that reached the Supreme Court in 1986. For seven justices, the decision involved a simple constitutional question. They saw the law as an effort to force religious belief into the science curriculum, and they struck it down.

Justice Antonin Scalia dissented. He saw the case as a question about certainty: What can we really know for sure? Pointing to “ample uncontradicted testimony that ‘creation science’ is a body of scientific knowledge, rather than revealed belief,” he chided his colleagues for treating the evidence for evolution as “conclusive.”

Scalia’s opinion, joined only by Chief Justice William Rehnquist, drew a pained response from the Harvard biologist Stephen Jay Gould. “I regret to say that Justice Scalia does not understand the subject matter of evolutionary biology,” Gould wrote in a natural-history journal. “We are not blessed with absolute certainty about any fact of nature, but evolution is as well confirmed as anything we know.” Scalia, a conservative Catholic, defined evolution, like the creation story in Genesis, as a means to discover “the origin of life.” But scientists don’t try to reach that ultimate answer, Gould wrote. “We know that we can’t, and we do not even consider such a question as part of science.”

Scalia’s dissent, written in his first term, became part of a pattern over his 30 years on the court. He relished argument and debate, but when he had to grapple with scientific evidence, he was often wary. “In all my conversations and observations of him, I don’t remember him talking about science,” says Steven Calabresi, a law professor at Northwestern University who clerked for Scalia and considers him a second father. Scalia was the court’s indefatigable and irrepressible originalist, promising to interpret the Constitution based on its meaning when it was written. In his crowning achievement, the 2008 case District of Columbia v. Heller, he used historical research to locate an individual right to bear arms in the 18th-century language of the Second Amendment. “History is a rock-solid science compared to moral philosophy,” Scalia said at the University of Virginia School of Law in 2010. In other words, he saw his project as stripping the law of judicial ideology. When his colleagues reached results that matched their politics, he derided them with the phrase “any stick to beat a dog,” according to another former clerk, Bruce Hay, now a law professor at Harvard. To prove the impartiality of originalism, Scalia often pointed to the occasional votes he cast against his preferences, like his support for a 5-to-4 ruling in 1989 that found a right to burn the flag in the First Amendment.

And so it’s striking, observes Justin Driver, a law professor at the University of Chicago, “that the justice who more conspicuously than any other was invested in trying to make legal interpretation objective sometimes seemed to be skeptical of science itself, the best means we have of pursuing objectivity.” At an argument before the Supreme Court in 2006, in a case about climate change, a lawyer for Massachusetts gently corrected Scalia for referring to the stratosphere instead of the troposphere. “Whatever,” Scalia responded. “I told “I would like to use the law of this land to do everything I possibly can to protect America's children from abuse and violence and to give to each of them the opportunity to grow to be strong, healthy and self-sufficient citizens of this country.” — Janet Renoyou before I’m not a scientist. That’s why I don’t want to have to deal with global warming, to tell you the truth.”

But the court had to deal. Justices are generalists by trade, picking their way through a minefield of facts without the benefit of personal expertise. A majority of the justices agreed in the climate case to state the scientific consensus: “The harms associated with climate change are serious and well recognized.” In dissent, Scalia held fast to doubt: “The court’s alarm over global warming may or may not be justified.”

He also refused to treat social-science research as settled. In 2013, the lawyer defending California’s ban on same-sex marriage gave no examples of how allowing gay couples to marry could be harmful. “I don’t know why you don’t mention some concrete things,” Scalia prodded him. “There’s considerable disagreement among sociologists as to what the consequences of raising a child in a single-sex family, whether that is harmful to the child or not.” In fact, at that point there was a strong body of evidence showing that children fare as well with gay parents as they do with straight ones.

Scalia, whom Donald Trump has called his model for selecting future justices, also contradicted scientific consensus when he declared it “very likely” last year that the death penalty deters murder. He dismissed the findings of a panel of the National Research Council, which surveyed the relevant studies and unanimously concluded in 2012 that the death penalty does not have a deterrent effect. To support his claim to the contrary, Scalia cited three articles. Two were statistical studies that the National Research Council had discredited. The lead author of the third (which was not an empirical evaluation) had previously stated that his paper did not claim the death penalty had a deterrent effect. “Scalia was willing to cite work that was thoroughly refuted by an accepted scholarly institution, without feeling any need to buttress his position,” says John Donohue, a Stanford economist and law professor who conducts empirical research on the death penalty.

By seeking refuge in uncertainty, Scalia — paradoxical though it may sound — cast himself as a kind of apostate. He even refused to join part of a 2013 opinion, by Justice Clarence Thomas, that laid out basic principles of human genetics in textbook fashion: “Sequences of DNA nucleotides contain the information necessary to create strings of amino acids.” Scalia said he could not affirm the facts based “on my own knowledge or even my own belief.” The last bit could contain multitudes; Scalia didn’t explain it.

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1 comment:

  1. Your first blog post of the year made me think about how I could disagree with Reno while still respecting her, yet shudder at having to share the same air as Scalia. Just because they were both judges, they certainly did not use the same quality of judgement nor use the same criteria to make decisions. Thank you for providing such providing food for thought.