Wednesday, November 07, 2012

Obama, the Popular Vote, and the Left

It's hard to not be delighted that so many bigots and right-wingers were horribly disappointed this week when Barack Obama won a second term, but it's still difficult for me to be all that enthusiastic about the Democratic President.

I know what you're thinking: "1. Don't be so cynical."  "2. Do you have anything positive to say?" "3. Get with the winning team!"

1. I'm not cynical.  I have a tremendous amount of hope; just not with the Democratic Party or Obama.

2. I think there were plenty of positive things to say about yesterday's election, from gay marriage, to marijuana legalization, to Puerto Ricans voting for statehood.  Even in the defeat of Romney-Ryan and re-election of Obama I see some positive, but not what you might think.

3. No.

So as a critic of Obama and the Democrats from the left, my positive view about the presidential election comes from the fact that Obama 2012 won with less of the popular vote than Obama 2008.

For those saying he has a mandate, I don't see it.  He certainly has less of a mandate than he had in 2008 when he won with more of the popular vote and his party had control of both houses of Congress.  The only mandate that exists is the same that any president has who wins a second term - the other party knows they have to live with what will likely be a full 8 years outside of the executive branch and that might lead to more compromise, more shaking up of their own internal affairs.

For the left – those of us not aligned with the Democratic Party – this is positive not because our great socialist leader was re-elected, but because he actually didn't do all that great.   In 2008 Obama ran on a far more progressive platform than reflected by either his governance since then or his 2012 platform.  Obama 2008 was a sharp contrast to McCain/Palin and to the 8 years of Bush before.  Obama 2012 mostly ran on killing Osama Bin Laden and a couple of other things mostly important to partisans.

He did run on Obamacare, but that program, still unproven, is a far cry from what he ran on in 2008.  Back then he supported a public option and was opposed to an individual mandate – kind of the opposite of what happened.  Plus, in reality, Obamacare was a Republican idea.  Forcing people to buy health insurance was Romney's idea before it was Obama's.

He also ran on the auto bailout.  It probably helped him in a couple of the swing states, turning enough states blue to make it look like a decent victory if all that matters is an electoral college victory.  Still, it is a relatively minor point in the grand scheme of U.S. policy, and while Romney opposed the bailout, his running mate, Paul Ryan, voted for it.  So it might have been good for a few Obama television ads in the Midwest, it was not exactly a great progressive victory distinguishing him from the other side.

Obama 2008 and his healthier groundswell of support in that election contrasted with Obama 2012 demonstrate that progressive, populist policies – the ones he ran on back then – can win elections.  That's an interesting observation, but may not translate into anything useful if it isn't widely recognized and/or we don't keep that in mind as Obama seeks to reach a "grand compromise" with Republicans by cutting or limiting Social Security and Medicare, as his administration continues to murder people with drones and punish the people of Iran with sanctions (if not war), as his Justice Department ratchets up deportations and prosecutions of political activists, and all the other awful stuff that could be far more difficult to counter because it is a Democrat doing it and shut the hell up, the mid-terms are just around the corner.

Thinking back to the Clinton presidency, I can see how this scenario could be a bad one for the left, for workers, and for people who care about human rights.  But I'm hopeful because I've seen what the left can do, even when a progressive like Obama is in power.  We've seen it with the Occupy movement, the battle over unions in Wisconsin, and the teachers' strike in Chicago.  The left is still here, and we aren't all obsessing over a glorious victory by Obama.  Sure, things could go very badly, but a strong grassroots movement from the left during a Democratic presidency could be a game changer.

Wednesday, September 05, 2012

Turn Off the DNC

I don't watch the Democratic National Convention for the same reason I fast forward through commercials - facts matter much more than scripted entertainment designed to sell something - and at the end of the day, even if you know the product is rotten and people are exploited making it, that little voice in your head will still be hammering away: "why not just buy it? everyone else is. those cancer causing, artificial flavors are really tasty and probably won't affect your health any time soon."  In fact, I think it is a real problem that so many of my progressive colleagues watch at all; Because it is difficult to not be inspired by some of the rhetoric, caught up in the occasional sincerity (which may or may not be genuine), and wrapped up in the importance of a major pep rally for the leader of the most powerful nation on earth.

Ultimately it is a show for one of two political parties holding major positions of power in our American empire - an expensive show for a political party raising hundreds of millions of dollars just for this one election and this one political office.  To be clear, if someone put a gun to my head and said "which do you prefer, the Republican or the Democrat," the easy and obvious answer would be the Democrat, but I have no interest in cheering on either establishment political party. Yet that's what these shows are designed for: cheering.  They are not unlike the political parades and party rallies in despotic countries, though with more polish to be sure.

Should I vote for Obama?  Should I at least reluctantly vote for him?  At least against Romney?  Maybe.  That is not what this post is about.  It is about this Democratic National Convention that has suddenly excited some in the Democratic base who, just a few months ago, were soberly assessing the pitiful record of Hope and Change.  Well-written speeches, no doubt.  People at the table who would not be at the table at the RNC - yes, of course.  Does that matter?  Yes.  What matters more?  One million people deported.   The 13 civilians killed by a U.S. drone strike in Yemen this weekend, and all the other innocent men, women and children killed by our reckless foreign policy.  Employment rights for queer people.  Civil liberties.  Global Warming.  Really big issues that affect millions of people – issues the Democratic Party is unwilling to or unable to deal with in any serious way.  I don't expect perfect, but these are not minor points, and the Democrats have no incentive to do anything differently if everyone from the center on to the far left are going to cheer them on and give them a pass.

Check out the debates perhaps.  Read some non-corporate, non-partisan, analysis of the political pep rally perhaps.  But I wouldn't watch.  It's too dangerous - even for me.

Friday, June 01, 2012

No Heroes

This guy on cable news expressed skepticism about calling all American soldiers heroes and conservatives wanted to hang him for treason.  But he was absolutely correct.  I don't think we should call anyone a "hero" even if many people act heroically from time to time.  So you object and ask, "fine, but will you admit that all American soldiers are heroic?"

"No," I would reply.  Brave more likely than heroic.  You have to be brave to risk going into a war zone, don't you think?  But heroic?  You need to do a bit more.  Save someone's life, or leak classified information, something like that.

There's also a lot of hypocrisy involved in honoring the troops and calling them heroes.  I don't think we should call them heroes, but I do think that veterans deserve excellent, free health care; the government that they purportedly served should not let them become homeless or put more resources into incarcerating them than ensuring they have what they need to stay healthy and support their families.  But a lot of the chest beaters who believe the cable news host did not adequately venerate the warriors who protect freedom and the American way by signing up for the military and thus agreeing to land on a grenade to protect an American flag if need be, likely don't think much about these mundane issues like healthcare, mental healthcare or substance abuse treatment for veterans.  Those crazy people who end up in prison aren't heroes after all, even if they developed mental illness murdering people for American imperialism.

Which reminds me of why I don't like calling anyone a "hero."  I have as much trouble with that as calling someone a "demon" or "villain."  It doesn't acknowledge the humanity in all of us.  We are all capable of heroic feats (well maybe not Donald Trump) and we can just as easily succumb to bad behavior.  We can become ill or fall on serious bad luck, but we can also rise to the occasion or find ourselves in a position of great privilege.  Our circumstances play a big role in all of that, of course.  Furthermore, we can do something heroic one day and something selfish the next.  If the brave guys who killed Osama Bin Laden end up using food stamps in 20 years, are they still heroes (not that I think the guys who killed Osama Bin Laden are heroes necessarily - it is really an example for those folks who believe they are); what if they shoplifted some baseball cards from a Mom and Pop store in America's heartland when they returned to the U.S.?

So I agree with the guy on cable news – ChrisHayes – even though I think MSNBC hires too many white guys who hold uninteresting opinions.  Enough with the hero talk.  You joined the military, maybe with good intentions, maybe with bad intentions, maybe because some recruiter told you when you were 17-years-old that they'd pay for college, you'd get to see the world, and you'd never see combat if you just sign on the dotted line; good for you, but that doesn't make you a hero.

Also this:

Thursday, May 10, 2012

Actions Speak Louder Than Words

I remember sixteen years ago nearly falling off the couch - in my decrepit apartment, living off student loans in Austin, Texas, still feeling like I was halfway in the closet - when President Bill Clinton said at the Democratic National Convention:
So look around here, look around here: Old or young, healthy as a horse or a person with a disability that hasn't kept you down, man or woman, Native American, native born, immigrant, straight or gay, whatever, the test ought to be I believe in the Constitution, the Bill of Rights, and the Declaration of Independence.
Less than one month later, he signed the Defense of Marriage Act.

So I suppose it's better that Obama said he supports gay marriage rather than not, but he also said he'd close Guantanamo, so ....

Wednesday, April 25, 2012

Death Valley

Missing my old West Texas trips - and the heat in general - I dragged my partner out to Death Valley for a few days.  Here's what happened:

Stovepipe Wells Motel
Three days before, the forecast was for highs in the 80's and cold nights.  By the time we set out for a day of travel through the Central Valley, the forecast was for highs around 100 and warm nights.  So it was hot.  A dry heat, but there isn't a lot of shade in Death Valley, so there wasn't a lot of relief from the direct sunlight except in the car or the motel room.  Motel?  We stayed in Stovepipe Wells since it was pretty much in the middle of the largest National Park in the lower 48.

Since we arrived in the evening we didn't have time for much that day, but managed to check out the Mesquite Flat Sand Dunes at dusk - just down the road.  We also checked out the pool at the motel and met a friendly Canadian guy who said he "love[d] this country" because it's too cold in Canada and he met some loose women in Las Vegas.  Just don't get sick dude.

Woke up relatively early despite an unfamiliar bed and headed for what is often considered the highlight of the park - the lowest point in the Western hemisphere (not counting the oceans).  Along the way we checked out Golden Canyon - interesting but don't bother with the 25 cent pamphlet/guide - here's the gist: these rocks are really, really old.  Then the Badwater Basin.  Holy shit.  A hot, flat, salty, slab of earth that sits below sea level and has got to be the size of 10,000 football fields, and you can see all the way to mountains that rise up thousands of feet above.  As we walked along the white, salt path I commented to JC: "This place could use a coffee stand.  Can you imagine?  Some poor barista making espresso out here, sweating like a dog."

Artists Palette (purple rocks!!)
Then off to the Artists Palette.  Not a literal palette, but very colorful and unusual cliffs.  Probably one of the first places where we couldn't stop looking at rocks.  That's right, rocks.

Followed that up with a drive up to Dante's view to cool off and get another view of the Badwater Basin.  The Basin was probably about 100 degrees, while Dante's view - a 20 minute drive away - was a comfortable 76 or so.  The heat has a way of sapping your strength, so after that we headed back to the motel for a siesta.

After relaxing a bit in a 68 degree, tv-less room and drinking an ice-cold beer, we ventured out to the heat and took the Honda FIT onto our first unpaved road of the trip - just around the corner to Mosaic Canyon.  If you ever wanted to walk through a smooth, striped, marble canyon, this is the place.  It was one of the highlights of the trip - we didn't see another person except a few folks leaving as we arrived and a few folks arriving as we left.

The next morning I noted that we hadn't seen any mammals since we arrived - no squirrels, no coyotes, nothing - except humans of course.  On our way to the charcoal kilns we stopped in a random dry stream bed and took a walk in a mild, scrub-filled valley, where we surprised the first of 3 rabbits we'd see on the trip.  Out another unpaved road to the charcoal kilns - some old structures that were used back in the 1870's to create charcoal for use in smelting or something - which led to a steep trail featuring cacti growing among pine cones and another incredible view of the Valley.

The old jail in Rhyolite.
Still trying to get relief from the heat, we drove to Darwin Falls and one of the rare, lush canyons in the park.  JC found a camera someone must have dropped on the trail.  Look for it on Craigslist soon.  The waterfall itself was relatively small compared with what you'd find in the Sierra Nevada, but it was still an unusual sight in the area.

That night, the Stovepipe Wells Ale hit the spot.

There are lots of ghost towns around Death Valley, but most are in more desolate areas at the end of rough, unpaved roads, and we only had a few days.  Rhyolite is conveniently on a paved road and one of the better-preserved ghost towns.  The highlights include a 3 story bank that is still standing, sort of, and a house some crazy dude from the 1800's made out of bottles.

Salt Creek pupfish
After that we found a city park with cottonwood trees in Beatty, Nevada and enjoyed some dash board soup (soup heated on the dash board of the Honda FIT) in the shade.  Driving back into the park we tried another random hike at Daylight Pass.  More cool rocks, but the highlight for me was startling a group of Chukars - some sort of partridge birds that are like ducks that stand up a bit straighter and have some striped thighs.  They kind of sound like a cross between ducks and chickens - quackling about the desert.

We sunk into the Valley a few hundred feet to see the pupfish in Salt Creek - ancient fish that only live in that creek.  Walking around the boardwalk - built to protect the sensitive habitat - felt like walking in a dry sauna.  I would imagine that at that temperature with only salty water available to drink, a human would die within 90 minutes.  Seriously.  Luckily our car and A/C were both nearby.

We survived!  And enjoyed another swim at the pool.  Then off to a canyon that is rarely visited, but is just around the other corner from Stovepipe Wells.  ANOTHER UNPAVED ROAD; and this time the FIT wouldn't make it all the way.  That means we had to walk, like, 3 miles, uphill, through loose gravel in the hot sun, just to get to the mouth of Grotto Canyon.  Worth it.  The other best part of the trip (remember a nearby canyon - Mosaic Canyon was also pretty amazing) was this canyon where we saw no other humans.  Once in the shade of the canyon we walked through a palace of rock decorated with cacti and the sound of curious birds and a cool breeze racing through the tall canyon and scattered brush.  We reached a twisted rock formation that was too difficult to get past; but half the fun was trying to get around it.  We never did get around it - the path back down was too steep and we were tired - but scrambling up side canyons and looking back to see miles of sand dunes and distant peaks, made it a final adventure that really made the trip.  Reflecting on that last hike I realize that one of the best things about Death Valley is exploration.  There are lots of canyons - and many of them are relatively empty of people - so it feels like you're in uncharted territory.  You can also hike just about anywhere - again rarely seeing other humans - and find lizards, rabbits, rocks, unusual and/or amazing views, birds, and quiet solitude.  You just don't get that in many places this beautiful.

I actually liked the heat, but I think we could have done a lot more and hiked a lot further if we had gone in March.  We could also have gone a lot more places if we had a 4x4 vehicle.  So maybe next time we'll go in March and rent a 4x4.  There's still a lot more to see.

Monday, February 20, 2012


My grandmother and my grandfather back in the day.
My grandmother's obituary from the Corpus Christi Caller Times:
Catalina Toscano, a beloved wife, mother, grandmother, and great-grandmother went home to her heavenly father on February 13, 2012.
She was born in Corpus Christi, Texas, on April 29, 1920 to Florentine Trujillo and Sabino Armadillo ...
She lived in San Luis Potosi, Mexico during her young adult life, met and married her soul mate, Celso, and they returned to Corpus Christi to start a family.
She was active in her children's schools (P.T.A's) and active in her community and church, active in local politics (Was a block captain) and encouraged her family to vote and be responsible citizens.
She love (sic) gardening and traveling. She was light-hearted, friendly and was always smiling and quick to make friends. She was adored by her family and will be dearly missed ...
Published Thursday, February 16, 2012

I'll miss her.  My grandfather had already passed a few years ago and she was the last of all my grandparents.  She was a very giving person, a talented person, and a strong woman.  She raised seven, SEVEN, kids – including my mom.  Over the weekend I attended her funeral.

Naturally this got me thinking about my own death, and while I hope to live forever, science remains way behind where, as a child, I imagined it would be in 2012.  So I thought I'd write, here, what I would hope for after my passing; and if there's anything 3 years of law school taught me, it's that this blog post can serve as a legally sufficient will.

First, whatever organs can be donated to people who need them – please use them; Second, I want to be cremated; Third I don't want my funeral to be religious or involve religious ceremonies (though if individuals wish to pray that is perfectly fine, just don't bring in a priest or anything); Fourth – enough counting.

Not sure yet where my ashes should be spread.

I wouldn't want my funeral to be too somber – I think the song "You'll Never Walk Alone" would be great to play since it has a message of hope while acknowledging the challenges of life (and death); maybe some mariachi music and Arcade Fire.  The actual event would preferably be outside – a picnic would be good. The lesson of the event should be to make your time on earth count – try to change the world for the better – don't wait for some heaven in the afterlife (even if you think one exists) – we should all be working, fighting, struggling, for heaven on earth.

There should be dogs at my funeral to cheer people up. If anyone is allergic to dogs, they should be accommodated somehow; but not by eliminating dogs from the equation. Playful dogs would be best.

No fancy flower bouquets unless you pick the flowers yourself and arranged them yourself. If the funeral is in California and it is the right time of year, there are probably plenty of poppies and lilies around. Use those. If someone sends or brings store-bought flowers, that's fine; they just didn't get the memo; don't embarrass them or anything. If people want to do something – like people far away who can't attend the picnic – I think sending along food or drink would be great.

Those are my thoughts for now; and yes, I'm completely serious.

Tuesday, February 07, 2012

The One Way Street of Liberation

Central to today's finding that Proposition 8 is unconstitutional are the peculiarities of California law involving propositions and this: "Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights." (Quoting from an earlier case, which quoted from an even earlier case – Hernandez v. Robles, 7 N.Y.3d 338, 381 (2006) (Kaye, C.J. dissenting)) (emphasis added).

What are those peculiarities of California's law regarding propositions, or voter initiatives?  Well, there are different types.

Some propositions require fewer signatures to get on the ballot and are subordinate to the state constitution – the constitution can trump such a law if passed by the voters of California.  Other propositions, let's call them super-propositions, require more signatures to get on the ballot and are of equal standing to the constitution – like an amendment or change to said constitution.  Courts would have a tough time overturning such a law on California constitutional grounds because such a law would be part of that very constitution.  It would be like the U.S. Supreme Court finding the 26th Amendment to the U.S. Constitution – setting 18 as the legal age of voter eligibility – unconstitutional!

The timeline of attempts to strip same sex couples of the right to marry through such propositions is critical here because of the panel's Equal Protection analysis.  The panel might take issue with the title of this post as a "one way street," since it countered, head on, the argument that the Constitution ought not be a "one-way ratchet."  But in doing so it made the point that, while a state could extend rights or benefits and then then reverse course without violating the Constitution, a state cannot take away a right or benefit for only a particular class of individuals without a legitimate reason lest it violate Equal Protection; and animus towards a group of people is not a legitimate reason.

Now, here's the timeline: a regular proposition outlawed same sex marriage in California back in the day; the California Supreme Court decided that law was unconstitutional; then the homophobic defenders of the sanctity of opposite-sex marriage got a super-proposition passed (Proposition 8).  What the 9th Circuit panel is saying here, as I read it, is that, while Prop 8 was a super-proposition and thus could not be found unconstitutional under the California constitution.  It would be unconstitutional under the U.S. Constitution because it had no purpose beyond taking something away from a certain group of people without any legitimate reason.  And the something it took away was a fundamental right – a right that had already been recognized as extending to same sex couple by the California courts.

What if that right had not been recognized? In essence, what if the California Supreme Court hadn't overturned the first, regular proposition? The California Supreme Court could have decided that same sex couples have no right to marriage under the California Constitution.  If that had happened, Prop 8 would not have been necessary, but a federal court might nonetheless have reviewed that earlier decision.  Under the 9th Circuit's analysis, a federal court could not have found the earlier proposition unconstitutional on these same Equal Protection grounds.  No right was taken away; the right never existed.

What if a super-proposition had been passed in the very beginning describing marriage as between a man and a woman?  California courts would probably not have found this unconstitutional, the reason being, again, because the proposition would have become part of that very constitution which the court was charged with interpreting.  If challenged in Federal court, it would be debatable whether it stripped anyone of a right, since it simply defined marriage in California rather than took away a right that had been already recognized by a state court.

As the 9th Circuit panel wrote: "Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is ... the relative timing of the ... events is a fact, and we must decide this case on its facts."

I love this because it recognizes something truly beautiful about liberty: It should be easier to expand than contract; it should be simpler to say everyone gets x rather than this group of people don't get x, where x could be the right to marry, an education or tickets to a Broadway show.  Furthermore, once we recognize that we have a right to something, it should be challenging for a state (or the state) to say that most of us have that right, but not this particular group of people.

So it may be possible to drive the wrong way down a one-way street, but it is perilous and disfavored.  Put another way, enacting prejudice into law ought to be difficult.

Saturday, January 21, 2012

Occupy the Courts!

I had the privilege of speaking to about 200 people outside the 9th Circuit Court building in San Francisco yesterday as part of Occupy the Courts (this is despite the rain).  Up the street in the financial district thousands were marching about and closing down banks on a day of action called Occupy Wall Street West.  It was all connected.  Two years ago the Citizens United ruling – which allowed corporations to give large sums of money to politicians – came down and an already flawed democracy got even worse.  You could say that decision was like the fox in the henhouse deciding that gluttony is ok – a country where wealth is more consolidated than it has ever been had its highest court declare that big money is free to use it's money to subvert democracy as much as it wants.

Here is more or less what I said:

First, since I was speaking for the National Lawyers Guild, I mentioned the group and the part of our founding document that says human rights should be regarded as more sacred than property interests. The Citizens United case is a classic example of the clash between the two and our federal courts proved they are incapable of protecting human rights over property interests.

Corporations are human creations; they are legal entities – created by the state, given certain privileges by the state, and regulated by the state. Unlike human beings, they can live forever; Unlike all of us, many of them make billions of dollars and may pay little or no taxes. There is no reason why they're spending on politics can't be limited through democratic means. Nonprofit organizations are limited in their political spending. Churches and charitable organizations are limited. So why not for-profit corporations?

All of us ordinary human beings face time, place, and manner restrictions – many of which I disagree with (and even if I think there are some fair time/place/manner restrictions; they are often enforced in a discriminatory or arbitrary way against ordinary people).   Nonetheless, these courts have largely condoned such restrictions because there is a compelling state interest. Permit requirements, amplified sound restrictions, free speech zones, and nuisance laws – these are the hurdles to free speech most burdensome to us non-corporations. There is no more compelling interest than protecting democracy.

I asked the people assembled "who here likes democracy?"  The response was unanimous.