May 23, 2006
Poker and Life: An Interview Posted by Allen Barra at 10:15 AM EST Steven Lubet is one of America’s best-known literary lawyers. A professor of law at Northwestern University, he is the author of the popular textbook Modern Trial Advocacy and the widely praised Murder In Tombstone: The Forgotten Trial of Wyatt Earp. He writes a regular column for American Lawyer magazine and has also written for the Chicago Tribune, Washington Post, and American Heritage. In his latest book, Lawyers’ Poker: 52 Lessons That Lawyers Can Learn From Card Players (Oxford, $28), he takes on America’s newest gaming craze, poker, and explores the natural kinship between the card table and the courtroom. I spoke with him about poker, the law, and the Old West.
Your book is subtitled “52 Lessons That Lawyers Can Learn From Card Players.” Fess up. What kind of poker player are you? And don’t try to bluff me.
I am a student of poker strategy and an admirer of the poker greats, but I do not currently play. My basic point is that poker geniuses really know what they’re talking about, and that lawyers have lots to learn from them when it comes to strategy and tactics. Most importantly, then, you don’t have to be a poker player in order to learn from poker players. Just as you don’t need to be an ancient Chinese general in order to apply Sun Tzu’s philosophy of war to contemporary business.
And what’s the principal thing that poker players can learn from lawyers?
When it comes to strategy, I’m not sure lawyers have much to teach poker players. And the reason is that poker players have done such an excellent job of analyzing their game. The literature on poker is not only extensive, but, more important, it’s been validated in practice. Unlike law, poker is a game of repetition. Certain situations are repeated over and over—and since you can play 30 hands an hour or as many as 300 hands in one extended sitting, it is truly possible to experiment with various ploys and techniques. In that sense poker is more like science, or at least social science, than law is. Lawyers are really intellectual borrowers or copycats, who devour all sorts of ideas from other disciplines. We learn lots from economists, psychologists, even physicists—but it is usually a one-way process.
Still, if I had to provide one lesson to card players (on behalf of lawyers), it would be this: It’s not what you win, it’s what you keep. Diversify your investments and make sure that your financial manager is bonded and insured. Then, if you go broke you will always have someone to sue.
Who’s the best lawyer you’ve ever known? Who’s the best poker player?
The best lawyer I’ve ever known is Gerry Spence. Not only is he a genius, but he is also an inspiration to young (and not so young) lawyers who want to use their skills for the benefit of ordinary people. Gerry’s best piece of advice is to show the jury that you trust them, so that they will return your trust. He calls it “the golden mirror.” The best lawyer I’ve ever seen in trial is Chicago’s Eugene Pincham. He’s not as famous as Gerry Spence, but he is gifted as well. Gene Pincham has also devoted much of his career to assisting the needy, although, like Gerry Spence, he’s also managed to make a good living. Both Gerry and Gene are semi-retired from practice. I’m sure there are younger lawyers ready to take up the challenge.
I haven’t met any of the great poker players, but the best of the analysts would have to include, in my opinion, Doyle Brunson (though he is stylistically challenged) and David Sklansky. When it comes to poker literature (that is, not how-to books), the best writer is James McManus, with A. Alvarez and Anthony Holden in the running as well.
In your Lesson 13, “Patience,” you quote McManus: “Lying in wait is what good poker players do best.” It sounds as if patience is one of the most important qualities a poker player or a lawyer could have. If you had to name two others for both professions, what would they be?
The essential qualities for good lawyers and card players would have to include attentiveness and self-control. Attentiveness allows you to see patterns in your adversaries’ conduct, while self-control allows you to adapt your own behavior to fit the situation. In both cases you want to be able to accurately evaluate the opposition while preventing them from figuring out your own intentions. In poker, of course, you want to know whether your opponent is bluffing or betting for value (while holding good cards), while at the same time keeping them guessing about the strength of your own hand. In legal negotiation, for example, you need to figure out whether a “drop dead” offer is really the last word, or if there is in fact something more in reserve—and in contrast you want opposing counsel to believe that your final offer is truly final. In order to accomplish any of these goals, you must be super attentive, noticing anything that might be revealing about the other side. And at the same time, you must be in complete control of your own conduct, sometimes concealing your intentions and sometimes revealing them—but always for a purpose.
Great lawyers and card players add a third quality—storytelling. In poker, that’s usually called “representing a hand.” So you don’t bluff just by making massive bets (which would eventually become transparent) but rather by playing as though you are holding specific cards. Thus if you are betting as though you are drawing to a flush, you will fold if the cards on the table seem to bust your drawing hand. That will pay off handsomely later, because it will make you look like a tight player who only bets for value. That’s a story worth sticking to.
Lawyer storytelling is different, to be sure, because the stories must be true (contrary to popular opinion and all the lawyer jokes in the world). The art lies in making them coherent and engaging. Thus rather than present a series of simple facts, the great lawyers weave them into a compelling narrative that leads to a single answer. The similarity to poker lies in recognizing that a complete story is more persuasive than the sum of its individual facts.
Why poker now? Why has TV suddenly discovered poker? Is this just a craze that will pass in a couple of years, or, given poker’s longstanding hold on the American psyche, is it something that will continue to grow?
Poker is played by over 60 million Americans, and has been for years, so there is nothing new about the poker “craze.” Until recently, however, nobody had figured out a way to televise it. In that sense, poker was sort of like soccer—extremely popular among participants but invisible in the mass media. It’s hard to say how long poker tournaments will stay on television, but the game is only getting more popular, with millions now playing online.
May 22, 2006
Men Are From Mountain View, Women Are From Seattle; or, Why John McCain Will Defeat Hillary Clinton Posted by Frederic D. Schwarz at 02:30 PM EST (Note: I picked Brother Derek in the Preakness, so there’s no reason to pay any attention to my predictions, but here goes anyway, for what it’s worth.)
According to the Regular Guy Theory of Elections, American presidential races tend to be won by the candidate who does a better job of impersonating
somebody you’d want to watch a football game with. You can trace this pattern all the way back to Andrew Jackson and John Quincy Adams in 1828 (and in fact, I did just that here five years ago (scroll all the way to the end)), but let’s look at the elections since World War II—and remember, this has nothing to do with the merits of the candidates, only with their images.
In 1948 Thomas Dewey was a prohibitive favorite, but he was a notorious stiff, while Harry Truman was informal as all get-out. In retrospect, it’s no surprise that Truman pulled off a last-moment upset. In 1952 and again in 1956, ever-genial Dwight Eisenhower had it all over Adlai Stevenson, for whom the word “egghead” seemed to have been invented (though in fact Eisenhower was a former college president, and you can’t get much more
eggheaded than that).
In 1960 there was no clear favorite in the affability department. JFK was more easygoing than Richard Nixon, but he also had a hard time hiding his aristocratic background, so that was a very close election. In 1964 LBJ had the advantage in folksiness and everything else; Barry Goldwater was actually quite down-to-earth, but his ideas were not right for the times (some were ahead of the times and some behind them, but very few were sound for 1964). The 1968 and 1972 elections were like 1960 in that neither Nixon nor his opponent (Hubert Humphrey and George McGovern respectively) had the down-home touch, so other factors predominated.
In 1976 Jimmy Carter seemed fresh and easygoing, giving him the edge on Gerald Ford, who was also unpretentious but somewhat on the dull side. But
after a rough four years, Carter had turned into an old scold, whereas Ronald Reagan was the master of well-gosh humility. Walter Mondale, in 1984,
was basically the same guy as Humphrey and McGovern—an intelligent, well-meaning, somewhat uptight, slightly too earnest upper Midwesterner—so
it’s no surprise that Reagan cleaned his clock.
The 1988 election may have pitted the least charismatic pair of candidates since FDR, as nerdy Michael Dukakis lost to preppy George H. W. Bush. Bush was easy prey for good ol’ boy Bill Clinton in 1992, and four years later Clinton managed to deflect a challenge from Bob Dole, who was much more like Ike than like Humphrey/McGovern/Mondale but had passed his sell-by date. And of course, George W. Bush did a much better job of positioning himself as a regular guy than Al Gore or John Kerry, not that those two offered much
competition.
So that’s why McCain will win in 2008. People appreciate how hard Sen. Clinton works and the fact that she’s less of a loose cannon than McCain, and while they know she takes most of her political positions for strategic reasons, they also understand that this indicates a welcome lack of ideological rigidity. Still, in the end she’s efficient but distant—not someone you can love. Hillary is Microsoft and McCain is Google, and Hillary’s attempts at being warm and friendly, however sincere they may actually be, ring about as true as the little smiling computer at the bottom of your screen. As weird and annoying as Google and McCain can sometimes get, in the end they’re just more fun.
May 22, 2006
Barbaro Posted by John Steele Gordon at 12:25 PM EST Horse racing is not a blood sport, but the “athletes” probably suffer more fatal and near-fatal injuries than in all other sports combined.
On Saturday, it happened again when Barbaro, the odds-on favorite to win the Preakness, second leg of the Triple Crown of American racing, shattered three bones in his rear right leg shortly after the start, his agony seen by millions of horrified spectators watching in person and on television. His jockey, Edgar Prado, brought him expertly to a halt—no easy task when a horse of such great heart is in full gallop—and leaned into him to help support him until help could arrive. He quite possibly saved Barbaro’s life.
Barbaro’s racing career—six races, six victories, including the Derby in the most impressive win there in years—is over, and doctors, after four hours of surgery, can offer no more than 50-50 odds that he can make it through the recovery process. Racehorses, born to run, do not deal easily with forced idleness. A lesser horse would have been put down right on the track.
In 1975 the greatest filly who ever lived, Ruffian, shattered a foreleg in a match race against Foolish Pleasure at Belmont Park in New York. Despite desperate efforts, she could not be saved, and she lies today at Belmont, her nose toward the finish line, the only horse ever buried at a New York track. Her story was lovingly told by Gene Smith in American Heritage in
1993.
There is something about great horses like Barbaro and Ruffian that sets them apart from lesser equines, something that moves the human heart by the way they stand, the look in their eye. When Augustus Saint-Gaudens was commissioned to create his heroic equestrian statue of General Sherman being led by the angel of Victory that stands in all its gilded majesty in New York’s Grand Army Plaza, he did not make a statue of a generic horse. Instead he carefully modeled his bronze horse on Ontario, one of the great jumpers of his or any day. By horse lovers the statue is still sometimes referred to as “Ontario, W. Sherman up.”
May 19, 2006
Tar Baby Posted by Frederic D. Schwarz at 09:40 AM EST At a White House press conference on Tuesday, the President’s press secretary, Tony Snow, declined to answer a reporter’s question, saying it was a “tar baby” that would get him mixed up in unwanted complications. The next day, reporters for The New York Times and the Washington Post took Snow to task for “using a term—“tar baby”—that many consider racist” (the Post) or at least one that has “vague racist connotations” (the Times).
Even considering the sources, this tut-tutting sounded strange to me, since I had never heard “tar baby” used in any way except to describe a sticky situation that’s hard to get out of. And if it is a racist term, there are a lot of racists around: Fifteen minutes on the Internet yielded examples of the use of “tar baby,” with no hint of irony or disapproval, by Robert Dreyfuss and Laura Rozen in The Nation, Matthew Rothschild in The Progressive, Jack Shafer in Slate, Richard T. Cooper in the Los Angeles Times, Lance Morrow in Time, and numerous writers at The Daily Kos and the Democratic Underground (both left-wing websites), as well as such eminent liberals as James Wolcott (on his website) and Sen. John Kerry (in a New York Times article).
The term originates, of course, in an old African-American folk tale that Joel Chandler Harris adapted for one of his Uncle Remus stories. The story was first published in the Atlanta Constitution in 1879 (though a Texas lexicographer named John Williams has recently found the phrase “tar baby” used in a magazine from 1870). A copy of Harris’s story can be found here. The story is hard to read today because of all the gwine’s and sho’s, but the gist is that Brer Fox traps Brer Rabbit by putting a baby made of tar by the side of the road. Brer Rabbit strolls by and tries to talk to the tar baby, and when it doesn’t reply, Brer Rabbit gets angry and starts punching and kicking it. Before long he is stuck to it and can’t escape. The metaphorical use of “tar baby” is well established, though with varying meanings. In Mark Twain’s autobiography, dictated to his assistant in 1906 but not published until 18 years later, he recalled the 1884 presidential campaign thus: “For two years the [Hartford] Courant had been making a ‘tar baby’ of Mr. [James] Blaine, and adding tar every day—and now it was called upon to praise him, hurrah for him, and urge its well-instructed clientele to elevate the ‘tar baby’ to the Chief Magistracy of the nation.” Some other uses of the phrase through the years can be found here. Most reference works, including The American Heritage Dictionary (with which our magazine no longer has any real connection), simply define “tar baby” as a problem or situation that’s hard to get out of, rarely with any mention of a racist connotation. Yet some authoritative sources have ruled that the term does has racist overtones. In 1998 a Massachusetts appeals court decided a case in which a woman named Zhang was suing MIT for employment discrimination. Among other alleged offenses, she claimed that an MIT official had used the term “tar baby” in connection with her, though a previous judge had ruled that “the term ‘tar baby’ had been made in reference to her situation and not her race.” The appeals court declared that: “For purposes of this decision, we acknowledge that the term ‘tar baby’ is extremely offensive to Black Americans. Nonetheless, in view of the undisputed facts that Zhang is not a member of the minority who rightfully take offense to that term . . . and that MIT has a history of employing minorities, including Asians, we agree with the Superior Court judge’s conclusion that Zhang’s proffer was insufficient to show a prima facie case of race discrimination.” A similar wrong-race case, involving a Philadelphia library official who used the phrase in an e-mail, led to this explanation in a newspaper article: “Although the e-mail recipient . . . is white, the term ‘tar baby’ is commonly known to be a racial slur.” Even when the term is not applied directly to a person, its use may inspire objections. In 2004 a newly hired director of the New Orleans City Planning Commission looked forward to starting his new job by saying, “I’ve got to grab the tar baby by the ears and jump right in.” Mayor Ray Nagin, who probably wishes that questionable colloquialisms were still his biggest problem, demanded and got the man’s resignation. The same thing happened later that year when a utility board official in Fort Pierce, Florida, said in an e-mail that a “reporter is calling a PCA increase a ‘rate increase.’ This is a tar baby.” See here for a brief account of the controversy; also see here for the minutes of a city commission meeting with an extended discussion of the phrase’s use, starting on page 43; at one point a man says that he “has learned about a story of a rabbit, it is a Walt Disney story.” (This and other Joel Chandler Harris stories formed the basis for Disney’s 1946 film Song of the South.) Anyway, the official resolved the matter by apologizing. Then last fall the acting mayor of a Houston suburb described “a piece of property that would be difficult to develop” as a “tar baby,” and he too encountered calls for his resignation, though in the end an apology sufficed. And just this spring, in St. Cloud, Minnesota, a commissioner was sharply criticized by the local NAACP after he described the proposed expansion of a city bureau’s responsibilities as a “tar baby”. The commissioner apologized. In this case the story is complicated further because the bureau in question was the St. Cloud Human Rights Office. So the phrase is widely thought to be racist, yet many people who you’d think would know better are evidently unaware of it. What’s going on here? My guess is that until recently, most people encountered the term “tar baby” only occasionally and seldom gave it a second thought. Then, during the last few years, it became one of those phrases that everyone suddenly starts using, like “beg the question” (which originally meant that you were evading a question, not raising one, but that’s another issue) or “the mother of all _____”. In particular, people have been applying “tar baby” to the Iraq war when they’re looking for a cliché to use instead of “quagmire.” Then other people read the phrase, find it apt, and use it themselves, and pretty soon it’s all over the place. And as this process happens, the volume of objections also increases. There are two ways this situation could resolve itself. Either the people who have been using the phrase will avoid it for fear that it might be misunderstood, and a colorful metaphor and a classic bit of folklore will be lost from American speech, or else the people who have been objecting to the phrase will come to understand its origin and lighten up. For anyone who has lived in the United States over the last few decades, it’s not hard to guess which outcome is more likely.
May 18, 2006
Secession II Posted by John Steele Gordon at 03:30 PM EST Fred Schwarz is quite correct that states can give permission for other states to be carved from their territory, although at this point it is highly unlikely to ever happen again. And certainly New York State is about as likely to surrender sovereignty over New York City as the sun is to rise in the west.
The only time when a state actually cleaved in two with the permission of the original state government, as far as I know, was when Massachusetts voluntarily allowed Maine to vote on leaving the commonwealth, which it overwhelmingly voted to do in 1819 and was admitted to the Union the following year as part of the Missouri Compromise.
The western claims of the original 13 states were just that?s. The territories surrendered were not organized and were largely uninhabited by settlers. Many of these claims, based on vaguely worded colonial charters, overlapped, and it would have been an unholy mess to adjudicate them.
West Virginia was clearly created in violation of Article IV, Section 3. But of course Virginia was in a state of rebellion at the time, making it a tad difficult to go to the Supreme Court and demand enforcement.
As for Texas, what territory, exactly, was admitted to the Union in 1845 by joint resolution was unspecified. Texas claimed everything east of the Rio Grande; Mexico claimed all of Texas. The Joint Resolution just admitted “Texas” to the Union, whatever that turned out to be. The Mexican War ended Mexico’s claims, of course, and the Compromise of 1850 established the modern borders of Texas.
It is frequently heard that Texas has the right to divide into as many as five states. But I believe that that was an option only at the time of admission and is now moot. Anyway, which of the five states would get the Alamo?
May 18, 2006
Rx for American Health Care Posted by John Steele Gordon at 12:30 PM EST I wrote on Tuesday that I would outline my ideas for improving the country’s health care system. Please note that the operative word in that last sentence is “outline.” Numerous full-length books have been—and doubtless will be—written on this subject. This post is but the merest pencil sketch on the back of an envelope, not an oil painting.
It will come as no surprise to the readers of this blog that I am a capitalist to my fingertips. I believe that the private enterprise system can do a much better job of providing health care to Americans than can any alternative. But that said, any system of health care in the richest country the world has ever known must provide adequate care to everyone without exception. If someone cannot fund his own care, for whatever reason, then it must be funded for him by society. Period.
It should also be noted that the total cost of health care is going to increase in the long term for three ineluctable reasons. (1) The average age of the American population is increasing and will continue to do so as the baby-boom generation begins to move into old age. Obviously, old people require more medical care than young people. (2) The population is continuing to expand. (3) The amount of medical care available is increasing rapidly and saving ever more lives, which then, of course, must get medical care in the future. The number of drugs available has increased dramatically, and many more are to come in the near future. The number of medical procedures is likewise increasing rapidly. Just consider the major technologies that today save lives and reduce suffering that were not available 30 years ago: laparoscopic surgery, PET scans, CAT scans, MRIs, etc., etc. All these technologies are expensive.
And I do not consider the politics involved. Many if not all of these suggestions, if formally proposed, would set off firestorms of political opposition as bureaucrats moved to protect turf, special interests (such as hospitals, insurance companies, doctors, drug companies, health-worker unions, etc.) tried to protect an often lucrative status quo, and politicians and editorialists tried to protect their own cherished notions about how to reform health care that differ from these ideas.
So here goes.
1) Make insurance regulation a federal responsibility. We have had national insurance markets for generations; we should have national regulation. State
insurance departments and state legislatures are notorious for looking out for the interests of special interests, which greatly increases the cost of insurance policies, rather than insurance consumers. Heaven knows Washington is hardly immune to the blandishments of lobbyists, but the glare of publicity is much greater there than in Albany, Springfield, Tallahassee and Boise.
2) Require insurance companies to offer a specific menu of policies that range from a bare-bones, catastrophic coverage at the low-cost end to an all-the-bells-and-whistles policy at the high end. The purpose here is to make it easy to compare one company’s policies with another, greatly increasing price competition among them.
3) Require them as well to offer medical savings-account policies. These are policies with a high deductible that is deposited in an account. If it is not spent on heath care, the money is rolled over into the person’s retirement account tax-free. The purpose here is to encourage consumers of medical care to ask the question that today is hardly ever asked: How much is this going to cost? Obviously that question can’t be asked in an emergency situation, but emergency medicine is only about 15 percent of all medical care. The rest is chronic care, such as dealing with my high blood pressure and overenthusiastic gastric-acid glands. As it is today, I simply do what the doctor tells me (the odd pepperoni pizza aside) and take what pills he tells me to take. The insurance company pays for it, so I don’t care. I should be encouraged to care by making it in my self-interest to do so.
The argument against this idea is that some people might skimp on needed care in order to keep the money. Undoubtedly some people will. Some people fight bulls, take drugs that will make them high in the short term and kill them in the long term, and chase tornadoes. But the vast majority of people want to lead long, healthy lives. These people, in their millions, all asking “what is the cheapest way we can do what needs to be done?” would have a dramatic effect on medical costs. So would requiring hospitals and clinics to post prices for standard procedures. They vary now by factors of often two or three in the same city, an economic situation only possible because few people ask the magic question, what will this cost?
4) Encourage—or better yet require—companies that now provide health insurance to their employees to instead convert the cost into increased salaries and wages so that the employees can buy their own instead of having no rational choice but to take what is offered, however unsuitable to their needs (a healthy woman aged 25 has very different insurance needs from a 60-year-old woman in delicate health). This again increases the number of people asking “How much?,” this time about the cost of insurance.
5) Make the cost of health insurance tax deductible, at least up to a certain limit (barebones fully deductible, bells-and-whistles less than fully).
6) Abolish Medicare and Medicaid. Both programs are incredibly badly run and rife with waste and fraud. Billions upon billions of dollars a year are lost
(literally lost—they can’t be accounted for) in these bureaucratic monstrosities.
7) Require everyone to have medical insurance. Of the 44 million now without medical insurance in this country, about a third have incomes over $50,000 a year, about 10 percent (if memory serves) have incomes over $75,000. These people are often young and healthy and therefore highly unlikely to need serious medical care in the near future. They are playing Russian roulette, knowing they will be cared for if they fall ill and can, in most states, buy insurance after they fall sick.
For those whose incomes are below a certain level, a refundable tax credit would lower the cost. For those still poorer (those now on Medicaid), the federal government would simply pay for the person’s private insurance. For those now on Medicare, the government would do likewise and the individual could pay for any additional coverage wanted, as they do now.
8) Make hospital regulation a federal responsibility. We have far too many hospital beds in this country because local governments often make it impossible to shut down unneeded facilities, due to constituent pressure (everyone wants to shut down unneeded hospitals, as long as they are located in other people’s neighborhoods) and the influence of health care workers’ unions (Dennis Rivera, head of the Hospital Workers Union in New York, is widely regarded as the most powerful politician in the state, with elected officials, Democrat and Republican alike, doing all they can to please him).
The federal government would be less subject to this pressure and could more easily move to convert the present system of largely general hospitals into a new system of local emergency rooms and specialized hospitals and outpatient facilities. The savings would be in the billions.
9) Reform tort law. Tort lawyers are economic parasites, plain and simple, siphoning off billions while contributing nothing, and driving up costs in unneeded tests, etc., to protect against lawsuits. They greatly increase the cost of medicine for everyone. The evidence of this is irrefutable. Malpractice insurance in states with reformed tort law and caps on pain-and-suffering awards (such as California) are much lower than in unreformed states.
10) Immunize drug companies against lawsuits involving drugs that have been approved by the Food and Drug Administration (as long as no fraud or deception was involved in the application process, of course). It is an only-in-America spectacle to have Merck defending tens of thousands of lawsuits in which juries of average citizens are asked to decide a question (Did Vioxx cause the plaintiff’s heart attack?) that the greatest cardiologist on the planet could not answer for sure.
11) Establish a federal trust fund, funded by a minuscule tax on prescription drugs, to compensate people injured by a failure of the FDA approval process to uncover dangers in new drugs.
Once these suggestions have been turned into legislation and enacted into law (Congress can do that by the July 4 recess, right?) and enough time has passed to assess the results, we can then see where we need to go further to assure that everyone gets the medical care they need at a cost they can afford.
But I have no doubt that these reforms would both save lives and save billions of dollars, enough, I bet, to fund the medical insurance of everyone not now covered.
May 18, 2006
Civil Rights and Polls Posted by John Steele Gordon at 11:50 AM EST Mr. Zeitz and I are just going to have to disagree about where to strike the balance between civil rights (which we both favor) and wartime necessity. I will content myself with noting that of those unalienable rights with which human beings are endowed by their Creator, Thomas Jefferson listed life as the first, for without it not much else matters. The grave is a very private place, but so what? (I am reminded of the classic Jack Benny routine where a mugger sticks a gun in his stomach and demands, “Your money or your life!” Benny raises his hands but just stands there. “Come on! Your money or your life!” the mugger demands again. “I’m thinking! I’m thinking!” responds the notorious tightwad. Tightwad on the stage, of course; in real life Jack Benny was boundlessly generous.) Needless to say, I don’t think Mr. Zeitz is in the least dimwitted. If I did, I wouldn’t bother to argue with him. But dimwits are not exactly an endangered species in the body politic as a whole or even among the chattering classes. Mr. Zeitz writes, “. . . a majority of Americans now believe that this President has consistently shown poor judgment, a patent disregard for facts and expert opinion, and an alarmingly casual relationship with the truth. He enjoys almost no credibility with the American public, which views his term in office as an unmitigated failure. (Don’t believe me? Look at the polls.)” Alarmingly casual relationships with the truth are commonplace in politics. The New York Times routinely refers to the NSA database that has recently caused such an uproar as “eavesdropping,” which it manifestly is not. Matt Lauer of the Today show calls it “monitoring your phone calls,” which it manifestly is not. And try to find a mention in the Times of how federal revenues have surged over the last two years, by about $500 billion. The Times’s famous motto is “All the news that’s fit to print.” Under Arthur Sulzberger, Jr., it should be changed to “all the news that fits our agenda we print.” I don’t think George Bush’s administration has a poorer track record than average in the truth department. It was his predecessor, remember, who “did not have sex with that woman.” That wasn’t a casual relationship with the truth. That was a lie. As for polls, there is no doubt that the President at the moment has very low poll numbers. But so did Harry Truman in much of his second term as the Korean War ground on in apparently endless stalemate. He is universally regarded today as a near-great president. President Clinton on the other hand had remarkably high poll ratings throughout his Presidency, even during the Monica Lewinsky scandal. Perhaps that is because he didn’t do much that didn’t poll well. Low poll numbers might be a badge of honor for a President from time to time, evidence that he is doing things that are not popular but necessary and will be appreciated by history. But polls are very tricky things. If the question is bright-line (Are you voting for candidate A or candidate B?) and the poll well constructed so that the sample is indeed a representative one of the population as a whole, then they can be quite reliable. (Not always: David Dinkins, New York’s first black mayor, always did better in polls than in the voting booth. He was supposed to win in a walk over Giuliani in 1989; he squeaked to victory. He was supposed to win narrowly in 1993; he got clobbered.) But in polls where the question is necessarily more amorphous, the results are much less reliable and depend on exactly how the question is worded. The more complicated the subject, the less meaningful is any poll. Here’s an example. USA Today asked its sample, regarding the NSA database, “As you may know, as part of its efforts to investigate terrorism, a federal government agency obtained records from three of the largest U.S. telephone companies in order to create a database of billions of telephone numbers dialed by Americans. . . . Based on what you have heard or read about this program to collect phone records, would you say you approve or disapprove of this government program?” The result: 51 percent disapproved. ABC News asked this question: “It’s been reported that the National Security Agency has been collecting the phone call records of tens of millions of Americans. It then analyzes calling patterns in an effort to identify possible terrorism suspects, without listening to or recording the conversations. Would you consider this an acceptable or unacceptable way for the federal government to investigate terrorism?” The result: 64 percent thought it acceptable. That’s a very big swing in the numbers, due, I imagine, almost entirely to the fact that ABC News gave a little more information about the program. Polls should never be taken as more than shadows on the cave wall. of course, the temptation to trumpet the polls that support what you want to be true is quite irresistible to left and right alike.
May 17, 2006
Secession Posted by Frederic D. Schwarz at 05:30 PM EST John Steele Gordon is correct that the idea of New York City seceding from New York State is both old and crazy. However, the constitutional clause that he cites would not prevent the city from becoming a separate state—-if the existing state and federal governments agreed, which is not likely. A number of states have been formed from territory of other states since the passage of the Constitution. Leaving aside the disputed status of Vermont, if you look at a map of the United States in 1789, Virginia, North Carolina, and Georgia all extended far to the west of their current borders. Present-day Kentucky was carved from Virginia’s western portion (as was West Virginia later on), Tennessee from North Carolina, and most of Alabama and Mississippi from Georgia. Then, of course, Maine was separated from Massachusetts in 1820 as part of the Missouri Compromise, and when Texas became a state in 1845, it included parts of present-day Oklahoma, Kansas, New Mexico, Colorado, and Wyoming. So it can be done, though it would require New York State to voluntarily surrender its jurisdiction over the city. And as we say in Manhattan, that seems a remote contingency.
May 17, 2006
Loving Franz Kafka Posted by Joshua Zeitz at 04:30 PM EST John Steele Gordon writes: “If given a choice between curtailing, to the minimum extent necessary, the civil liberties of people who wish our country harm, and making such a fetish of civil liberties that one of them is able to carry a suitcase full of explosives into Grand Central Terminal at six o’clock on a Thursday evening and detonate it, I have no trouble choosing the former. Anyone who chooses the latter is, indeed, in my opinion, dimwitted and soft on national defense. Let me reiterate one more time, the Bill of Rights is not a suicide pact.” Fine. But we have no idea what, if anything, those hundreds of souls caged up at Guantanamo are guilty of doing or conspiring to do. I don’t know if they were planning to do our country harm, and neither does Mr. Gordon. To date, we know only the names and national origins of roughly 750 prisoners, a number that does not include everyone who is or has been detained at Guantanamo. Many of the prisoners are themselves still in the dark about the crimes or plots of which they have been accused. All of which reminds me of a seminal work by one of my favorite Czech Jewish writers. In June 2004 the Supreme Court sensibly ruled against the Bush administration and found that the Guantanamo detainees are entitled to judicial review of their status. In response, the military established tribunals, each presided over by three officers, to determine on a case-by-case basis whether the detainees are members of Al Qaeda, the Taliban, or other terrorist organizations. Prisoners are not permitted access to attorneys; neither are they allowed to see or respond to evidence against them. Which, again, reminds me of a seminal work by one of my favorite Czech Jewish writers. Whether these military tribunals will pass muster with the courts remains to be seen. Mr. Gordon also writes: “We are at war with no signatory of the [Geneva] Convention. So the Convention does not apply to these men. Period.” If only it were that simple. We may not be at war with a signatory of the Geneva Convention. But of the 750 prisoners whose names and national origins we know, most come from Afghanistan, Yemen, and Saudi Arabia. All three countries are signatories of the accords (as are most of the 38 other countries whose nationals have been detained at Guantanamo for over four years). Their citizens are thus protected under its provisions. Unless, of course, they are enemy combatants affiliated with a non-state terrorist organization, in which case, the courts agree they are not protected. But, again, how does Mr. Gordon—and how do we know whether these men are, in fact, enemy combatants? Because the government says so, must it be true? Not to belabor the point, but this argument reminds me of a seminal novel by one of my favorite Czech Jewish authors. Mr. Gordon wants us to trust the President and his administration, and to take them at their word—the Constitution and the Geneva accords be damned. But a majority of Americans now believe that this President has consistently shown poor judgment, a patent disregard for facts and expert opinion, and an alarmingly casual relationship with the truth. He enjoys almost no credibility with the American public, which views his term in office as an unmitigated failure. (Don’t believe me? Look at the polls.) For my part, even if I trusted the current occupant of the White House, I’d still insist on high regard for the laws governing this nation, and the community of nations to which it belongs. I don’t think that I’m making a “fetish” of civil liberties, as Mr. Gordon suggests. (It will come as no surprise to readers that I also don’t think of myself as dimwitted or soft on national defense. Quite to the contrary, I’m one of my biggest fans. Everyone who knows me says so.) Suspending civil liberties can seem like a fine idea from this side of the fence. But in the kind of world that my favorite Czech Jewish writer once imagined, anyone—Josef K., for instance, or even John G.—can find himself disappeared into the night. Then civil liberties seem less like a fetish, and more like a democratic imperative.
May 17, 2006
Health Care III Posted by Joshua Zeitz at 01:00 PM EST I’m looking forward to reading more from John Steele Gordon on the question of health care. The issue is sufficiently complex and important as to defy the normal, rigid ideological divisions between left and right. One need only look to Massachusetts, where Ted Kennedy and Mitt Romney, two leaders from opposite sides of the political spectrum, recently forged a comprehensive plan to insure almost every resident of the state. Though we appear to agree on quite a few points of public policy, John Steele Gordon and I disagree a little about the history behind the question. Particularly, Mr. Gordon takes issue with my characterization of private-sector and public-sector motives. Insomuch as these blog posts are, by necessity, short, he is right, of course. My categories of analysis were sweeping. Nevertheless, I think I can defend them. First, and most specifically, the general agreement known as the Treaty of Detroit was not limited to General Motors and the UAW. Because UAW chief Walter Reuther and GM president Charles Wilson ironed out a pioneering series of agreements between 1948 and 1950—involving health care benefits, a defined benefits pension plan, and cost-of-living-adjustments (COLAs) pegged to inflation—Motor City was honored with the title. But labor historians use the term, “Treaty of Detroit,” more generically, to describe similar agreements struck between organized labor and large private-sector employers in a wide range of industries (rubber, steel, the needle trades, etc.). So when Mr. Gordon writes, “The deal cut between General Motors and the UAW bound GM and the UAW (and, in effect, the rest of the auto industry), not ‘the private sector,’” he is half-right and half-wrong. The deal became the prevailing model for labor relations and the provision of welfare benefits in the large, unionized industries. That said, in the post-war period union membership peeked at just 34.7 percent of the non-agricultural workforce, so many workers did not enjoy representation. But the industry standards set by companies like GM encouraged even many non-union employers to follow suit. More generally, Mr. Gordon’s assertion that I vastly over-simplify terms like public-sector and private-sector is of course right, but not entirely fair. The American Heritage Blog doesn’t allow for a great deal of specificity, as we tend to keep these exchanges short. But my analysis rests on a host of studies by labor historians like Nelson Lichtenstein (U.C. Santa Barbara), Lizabeth Cohen (Harvard), Robert Zieger (University of Florida), and Jennifer Klein (Yale), and political historians like Jonathan Bell (University of Reading) and Alonzo Hamby (Ohio University), who have painstakingly demonstrated the ways in which private-sector businessmen, businesses, and trade groups lobbied against the expansion of the welfare state in the 1940s and 1950s and insisted that the provision of health care and supplementary pension benefits could best be provided by employers, not government. Mr. Gordon writes: “Again, ‘the private sector’ cannot promise anything. In this case, Mr. Zeitz seems to be using the term as a synonym for ‘corporations.’ They, too, never acted in concert (which would have been illegal in any event).” But this isn’t entirely true. Thousands of trade groups, as well as umbrella business organizations like the Chamber of Commerce and the National Association of Manufacturers, have long coordinated the actions of large and small corporations, and professions, on matters of public policy and partisan politics. While such groups represent a diversity of interests and often clash, on a few questions—namely, whether FDR’s New Deal should be extended to encompass state health insurance, whether to raise the minimum wage, whether to keep provisions of the 1935 National Labor Relations Act(aka the Wagner Act) intact, whether to expand the reach of Social Security, and whether to pass “full employment” legislation resting on Keynesian economic principles—in the 1940s and 1950s these groups acted in concert. They almost always opposed these measures and lent their considerable financial and political clout to legislative and electoral struggles over them. Mr. Gordon is right in calling for more nuance, but I think we can make some generalizations about the working of interest-group politics in America. As for Mr. Gordon’s point about unions, and their half-clean hands, I’m happy to concede the basic point. When I argued, for instance, that the patchwork system of employment-based insurance left many women and African-American workers out in the cold in the 1950s, I might have gone further and explained that union locals—even those affiliated with nationally liberal labor organizations like the UAW—often played an aggressive role in maintaining rigid workforce segregation. Finally, I think Mr. Gordon’s critique of Paul Krugman was a little gratuitous. Say what you will about his New York Times columns, Krugman is a distinguished and widely respected economist. I’m not certain that I agree with his call for a single-payer system (that is, I think I disagree with him on this question, but I’m interested in knowing more about how the French system operates—from what my European friends tell me, it works far better than the English system). But Krugman is fundamentally correct in pointing out the wasteful administrative costs associated with our free-market health care economy, and since Mr. Gordon didn’t take that point on directly, I’m assuming that he, too, is begrudgingly in agreement with Krugman on that point.
May 17, 2006
New York City Secession Posted by John Steele Gordon at 11:30 AM EST Peter Vallone, Jr., a New York City councilman, has called for the city to secede from New York State and become the 51st state on its own. He claims—quite correctly—that the state takes far more from the city in taxes than it returns in services and transfer payments. The local news programs have been duly reporting this as though it were a brand new idea. In fact, it’ s probably the hundredth time the idea of secession has been bruited about, and it will go no further than previous calls for New York City statehood, which is to say nowhere. New York politics has always been complicated. John Adams in his long retirement wrote that “Man and boy I have known New York politics for sixty years, and to me they have always been the devil’s own incomprehensible.” And that was before the Erie Canal transformed New York into the Empire State and New York City became “that tongue that is licking up the cream of commerce and finance of a continent.” By 1860 New York was the “megalopolis of the Western world,” far and way the most cosmopolitan city in the country, famous—or infamous—for its wealth, depravity, and all that is wonderful and terrible about a great city. Upstate, meanwhile, remained a major producer of agricultural products—it still is—dotted with medium-size cities, mostly located along the Erie Canal. This, not surprisingly, produced a profound political divide between the city and upstate. It was a bit as though Wisconsin and Paris were to find themselves members of the same polity. It is no coincidence that only one elected New York City mayor has ever gone on to higher office. And that was John T. Hoffman, elected governor in 1862 due to a perfect avalanche of fraudulent votes courtesy of Tammany Hall.
But while upstate was more than happy to deplore New York City and its excesses, it was equally happy to tap into its enormous capacity to generate wealth. The real cows may have been upstate, but the cash cow was in Manhattan and upstate was—and is—not about to let it go a-roaming. To this day, the city enjoys far less “home rule” than the state’s other cities.
The result has been a steady stream of calls for Gotham to break free. Probably the first time there was a serious call to do so was in 1861, when the Southern states seceded from the Union. New York had been reaping enormous profits brokering Southern cotton to British and French mills, and that trade was threatened by the breakup of the Union. Mayor Fernando Wood (“of whom no man need fear he holds too low an opinion”) called for the city to secede both from New York State and the Union itself, so that it could continue to broker Southern cotton. Nothing came of the idea, of course (and the city, while losing the Southern cotton trade to the blockade, more than made up for it by brokering federal debt to finance the Civil War).
But ever since, city politicians, hoping for a little media attention, have regularly called for New York City to secede. There is just one problem: the United States Constitution. Article IV, Section 3, reads, “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other state . . .” So, memo to Peter Vallone, Jr., and the New York City media that is running this story for the umpteenth time: fegeddaboudit, as they say in Brooklyn.
May 17, 2006
The Geneva Convention Posted by John Steele Gordon at 09:30 AM EST Joshua Zeitz wrote on May 10 that “in addition to Padilla and Hamdi, the administration has held hundreds of foreign nationals as enemy combatants, summarily ruling them beyond the reach of the Geneva Convention accords.” Yes, the administration has done exactly that, and I hope they continue to do so. The safety of American citizens might crucially depend on it. The Geneva Convention, like any treaty, binds only its signatories, in this case to act in certain ways when they capture the soldiers of another signatory in wartime. We are at war with no signatory of the Convention. So the Convention does not apply to these men. Period. Further the Convention requires that those captured fulfill certain requirements, such as being in uniform, in order to enjoy prisoner-of-war status. Spies and saboteurs, for instance, are not protected by the Geneva Convention. They can be, and have been in the past, aggressively interrogated and even summarily shot. If we were to grant these men prisoner-of-war status, as defined by the Geneva Convention, we could not interrogate them—prisoners of war need give nothing more than name, rank, and serial number. Why on earth would the United States tie one hand behind its back in this way? Why would we voluntarily give these men a status they do not deserve and thereby gravely compromise our ability to learn what the enemy is planning? Does anyone think that Al Qaeda and its ilk would treat a captured American soldier according to the Geneva Convention? Before I am accused of doing so, let me make it plain that I do not think the United States should treat its prisoners in this war the way our enemies most certainly would treat theirs. We have seen how they treat them on television, cutting off heads in ways that must be beyond torture for their hapless victims. These men should be and, as far as I know, have been treated decently, provided with adequate food and shelter, clothing, exercise, etc. They should not be granted habeas corpus and all the other protections of American law as though they had stolen a car in order to take a joy ride. They are not criminals. They are bent on the destruction of the United States. Joshua Zeitz writes that, “Though he [me] would like to write off liberals as dim-witted and soft on national defense, Mr. Gordon has glossed over a legitimate and important source of disagreement. He believes that we should compromise civil liberties in a time of war.” No, I believe we must compromise civil liberties in certain instances in order to serve a greater good. If given a choice between curtailing, to the minimum extent necessary, the civil liberties of people who wish our country harm, and making such a fetish of civil liberties that one of them is able to carry a suitcase full of explosives into Grand Central Terminal at six o’ clock on a Thursday evening and detonate it, I have no trouble choosing the former. Anyone who chooses the latter is, indeed, in my opinion, dimwitted and soft on national defense. Let me reiterate one more time, the Bill of Rights is not a suicide pact.
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