Bob Schwartz

Month: September, 2018

The Hopeful But Limited Relief of Having the New Kavanaugh Investigation

It is good news that there will be a new FBI investigation in the Brett Kavanaugh matter. Any movement towards a return to free, open and lawful democracy is welcome.

But before we pop champagne and release balloons, a reality check. Here are some ways the investigation could have little effect on the outcome—in fact, will be designed to have little effect, besides providing cover for vulnerable and/or spineless Republicans.

1. It is a limited investigation. We don’t know the scope, which is being directed by Trump. It could be as narrow as the single incident alleged by Christine Blasey Ford, the incident that was the subject of Thursday’s hearing. This could mean simply talking to her, to Brett Kavanaugh, and to the few people who were there—only one of whom, Mark Judge, is an eyewitness.

Judge has already said that as an effect of his chronic alcoholic blackouts, going back to high school, he has no memory, one way or the other, of the incident. There is no reason he won’t say the same thing to the FBI.

The investigation could be broader. It could include other allegations that have been made. It could include everything that Ford and Kavanaugh testified to during the hearing. It could thus involve Kavanaugh’s claims about his benign behavior, claims that have been refuted by a number of people who knew him in high school and college. It could include all this, but almost certainly will not.

2. Trump controls the report of the investigation. Trump ordered the investigation. His order presumably included a specific scope of investigation for the FBI to follow. Just as importantly, the report of the investigation will go directly to Trump, who can decide how much of the investigation report can be shared and who it can be shared with.

The worst case, which would not be surprising, is that no copies of the report will be distributed. Instead, senators will be allowed to review the report in the White House. They may be allowed to take notes.

All of this—any presidential redaction and any restricted distribution—are part of the desire by some for this investigation to be “confidential”…

3. The investigation is, in some unspecified way, supposed to be “confidential”. Judge has said he wants whatever he says to be confidential. Kavanaugh has indicated he expects it to be confidential. It is unclear what this means functionally. But it is easy to see the case that would be made:

The only reason we are doing this investigation is to further inform the senators responsible for deciding on confirmation. Others, whether other members of Congress or citizens in general, may be curious, but they have no compelling reason to see the detailed report, given that it contains sensitive information.

If that reasoning sounds extreme, that is, extremely suspect, it is. But if you need a basis for it, just look at the “investigation” that went into Kavanaugh in the first place, and look at the history of the Trump administration. No twisted attempt at hiding the truth is too absurd.

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A Republican Supreme Court Nominee Lied in a Senate Confirmation Hearing

ABA Model Rules of Professional Conduct
Rule 3.3 – Candor Toward The Tribunal
(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;…(3) offer evidence that the lawyer knows to be false.

Brett Kavanaugh, outraged and defiant, lied to the Senate Judiciary Committee about a number of matters in the hearing yesterday:

Washington Post:  Here’s where Kavanaugh’s sworn testimony was misleading or wrong

A Republican Supreme Court nominee lied in a Senate confirmation hearing.
A Republican Supreme Court nominee lied in a Senate confirmation hearing.
A Republican Supreme Court nominee lied in a Senate confirmation hearing.

Forget about the allegations of sexual misconduct. Forget about the chronic drinking. Forget about any other suspected behavior. Forget about all of that and focus only on that one sentence:

A Republican Supreme Court nominee lied in a Senate confirmation hearing.

The drama continues, with Jeff Flake’s equivocation leading to a request for an FBI investigation strictly limited to the incident with Christine Blasey Ford. If Mark Judge agrees to talk to the FBI, which he may not, it is expected that he will continue to maintain no memory of it. The limited scope insures he won’t be asked about any other matters concerning Kavanaugh.

The Republican fix is in, the leadership has been clear on that, and relenting on a limited investigation doesn’t change that.

Instead, just look back and forth between that sentence and every Republican in office who demonstrates spineless disregard for American values and norms. Every citizen, every lawyer, every decent American should look. Look at those Republicans, then look at this:

A Republican Supreme Court nominee lied in a Senate confirmation hearing.

Mark Judge and the Theology of Whistleblowing

Mark Judge has come up frequently in the matter of Brett Kavanaugh. Judge was a high school buddy of Kavanaugh’s, and has chronicled his own wild years as a teenage alcoholic. The question Judge can answer—but so far won’t—is whether Kavanagugh was mostly a “choir boy”, as Kavanaugh swears he was, or whether together they engaged in drunken and sometimes aggressive behavior.

Kavanaugh doesn’t want an FBI investigation, Trump will not order one, and the Senate Judiciary Committee did not subpoena Judge. At this point, the only way Judge will speak out is voluntarily. And he has made clear that he does not want to be involved, that he has no memory of the particular incident involving Christine Blasey Ford, and that given his health and his recovery from long-time alcoholism, his public involvement would be detrimental.

This is all to introduce a different light on the matter. Judge’s memoirs of his life and recovery, including a high school depiction of the thinly disguised “Bart O’Kavanagh”, have gotten the most attention. But Judge, a devout Catholic, has also written frequently about the Church and about the need for more theological education.

The involvement of the Church in the Kavanaugh nomination has been pretty straightforward. It is believed that he will help in advancing constitutional limits on or even banning of abortion, and so he is favored. The influential magazine America: The Jesuit Review enthusiastically endorsed him in July. Yet after yesterday’s hearings, where it became apparent to some that Kavanaugh may have been lying about the incident with Ms. Ford, America rescinded its endorsement:

The Editors: It is time for the Kavanaugh nomination to be withdrawn

While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn….Judge Kavanaugh continues to enjoy a legal presumption of innocence, but the standard for a nominee to the Supreme Court is far higher; there is no presumption of confirmability….We continue to support the nomination of judges according to such principles—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

This is not, however, about the Catholic position on Kavanaugh. It is about whistleblowing. Mark Judge is in the position of a whistleblower. As a general matter of ethics and theology, that is a topic that has been widely discussed by Catholic theologians and philosophers. And as a specific topic, the Church is painfully familiar with keeping secrets (yes, sexual secrets) and the theology of handling those who might open a pathway to the painful truth.

Mark Judge has no doubt sought faithful guidance on how to proceed. That religious direction may be supplanted by legal process: it is almost certain that in a Democratic Congress, the Kavanaugh matter will be pursued in hearings, even as Kavanaugh sits on the Court. That will mean a subpoena for Judge.

Duty to yourself. Duty to others, especially the suffering. Duty to your faith. Duty to the truth. As a thoughtful Catholic Mark Judge knows, as every thoughtful person of faith knows, there are way more questions than answers.

What Trump MEANT to say: “I wanted a Supreme Court nominee willing to lie to get and keep his job. Like me. And I got it.”

What Trump said immediately after Kavanaugh’s appearance at the Senate hearing:

“Judge Kavanaugh showed America exactly why I nominated him.”

What Trump meant to say:

“I wanted a Supreme Court nominee willing to lie to get and keep his job. Like me. And I got it. You’re welcome America.”

The Trump/Cosby/Weinstein Analysis Becomes the Kavanaugh Analysis: Individual Incidents or Pattern of Behavior or Bad Character. Or All of the Above.

We’ve been learning the hard way how it works when people of power, prestige or celebrity are accused of bad things. Individual and isolated incidents are denied or covered up. Even if there is a smattering of proof, this keeps the focus away from the more important issues of patterns of behavior or bad character. In fact, when you bolster with endorsements of “good character”, the impact of the individual incidents is softened, and a pattern of behavior becomes unthinkable.

We have reached the point in the Brett Kavanaugh consideration where individual incidents are being set aside or shot down, just as evidence of a pattern of behavior or bad character is creeping in. That evidence isn’t even new. His high school drinking and debauchery buddy Mark Judge has written in his memoir about drunken exploits with his thinly disguised pal “Bart O’Kavanagh”. Judge will not be questioned, and merely says that he was given to frequent alcoholic blackouts (in high school and for years to come), and so he has no memory of the particular incident. Which begs the question of whether he and Kavanaugh engaged in a pattern of drunken and drugged exploitation of young women—something Judge no doubt remembers, even in an alcoholic haze.

It took years—decades—for the sordid past to catch up with Cosby, Weinstein, and others. Astonishingly, the sordid past still hasn’t caught up with Trump. If you ask Republicans, we have literally days to decide whether Kavanaugh has the character to serve on the Supreme Court. There is evidence that he does not, and it is something that can be determined only by a true due diligence review of the individual incidents, of a pattern of behavior and of character. There is no need to rush to judgment, and every reason to pause.

“That’s Pride F***in’ Wit Ya”: Rod Rosenstein Could Never Figure Out Whether to Follow Self-Interest, Duty or Conscience

All public servants in the Trump era—from Senators and cabinet members on down—have three possible paths to follow:

Follow your self-interest
Follow your duty, to job and to country
Follow your conscience

Many of the highest level people in the government have taken the easy path of least resistance and most gain, and have chosen self-interest, even as they try to disguise it as duty or conscience. But a number of people, many of whom finally left the government—voluntarily or not—have had to wrestle with these choices.

Whatever is happening to Rod Rosenstein, a good public servant, he never seemed to be able to figure out exactly how to be a good public servant in such strange times. He knew he owed a duty to his office and to his country, which meant a duty to his president, but that came in conflict with his conscience.

I have previously cited the movie Pulp Fiction on the question of expedience, and I repeat it here.

At this point in the movie bad boss Marsellus Wallace (Ving Rhames) is convincing aging boxer Butch Coolidge (Bruce Willis) to take a dive:

I think you’re gonna find ­ when all this shit is over and done ­ I think you’re gonna find yourself one smilin’ motherfucker. Thing is Butch, right now you got ability. But painful as it may be, ability don’t last. Now that’s a hard motherfuckin’ fact of life, but it’s a fact of life your ass is gonna hafta git realistic about. This business is filled to the brim with unrealistic motherfuckers who thought their ass aged like wine. Besides, even if you went all the way, what would you be? Feather-weight champion of the world. Who gives a shit? I doubt you can even get a credit card based on that.

Now the night of the fight, you may fell a slight sting, that’s pride fuckin’ wit ya. Fuck pride! Pride only hurts, it never helps. Fight through that shit. ‘Cause a year from now, when you’re kickin’ it in the Caribbean you’re gonna say, “Marsellus Wallace was right.”

Note: For those who haven’t seen Pulp Fiction (why not?), in the end Marsellus Wallace gets his, in the spirit of Quentin Tarantino’s sense of rough and uncertain justice.

Day of the Purge: The Random Goats of Yom Kippur

No matter how many layers and centuries of rabbinic interpretation and tradition overlay Yom Kippur, the holiest of Jewish holy days, we are educated by going back to basics and to the foundations. In the case of Yom Kippur, that means back to the Torah.

“And it shall be a perpetual statute for you: in the seventh month on the tenth of the month you shall afflict yourselves and no task shall you do, the native and the sojourner who sojourns in your midst. For on this day it will be atoned for you, to cleanse you of all your offenses, before the LORD you shall be cleansed. It is a sabbath of sabbaths for you, and you shall afflict yourselves, an everlasting statute. And the priest shall atone, who will be anointed and who will be installed to serve as priest in his father’s stead, and he shall put on the linen garments, the sacral garments. And he shall atone for the holy sanctuary and for the Tent of Meeting, and he shall atone for the altar, and for the priests and for all the assembled people he shall atone. And this shall be an everlasting statute for you to atone for the Israelites for all their offenses once in the year.” (Leviticus 16:29-33, Robert Alter translation)

We refer to Yom Kippur (short for the Hebrew yom hakippurim) as the Day of Atonement. But some offer the English translation “the Day of Purgation.” It is the day, according to Leviticus, on which the high priest was allowed to enter the holy of holies of the Tent of Meeting to purge it of the transgressions that had accumulated over the course of year—a dirty accretion that can be thought of as a sort of a dense smog.

Leviticus prescribes a detailed purgative procedure for Aaron to perform. It involves, among other things, a bull, a ram and two goats. Only one of the goats will be sacrificed. But which one?

And from the community of Israelites he shall take two he-goats for an offense offering and one ram for a burnt offering. And Aaron shall bring forward the offense-offering bull which is his and atone for himself and for his household. And he shall take the two goats and set them before the LORD at the entrance to the Tent of Meeting. And he shall put lots on the two goats, one for the LORD and one for Azazel. And Aaron shall bring forward the goat for which the lot for the LORD comes up, and he shall make it an offense offering. And the goat for which the lot for Azazel comes up shall be set live before the LORD to atone upon it, to send it off to Azazel in the wilderness. (Leviticus 16:6-10)

Who is Azazel? Why is he being sent a wandering goat in the wilderness? And why is the goat being chosen at random by lottery?

Robert Alter:

one [goat] for the LORD and one for Azazel: As countless seals and other ancient inscriptions unearthed by archeologists attest, the use of a proper name or title, prefixed by the letter lamed (“for”) as a lamed of possession, was a standard form for indicating that the object in question belonged to So-and-so (as in lamelekh, “the king’s”). These words, then (in the Hebrew, each is a single word, leYHWH and la‘azaz’el), are the actual texts written on the two lots. Much ink since Late Antiquity has been spilled over the identity of Azazel, but the most plausible understanding—it is a very old one—is that it is the name of a goatish demon or deity associated with the remote wilderness. The name appears to reflect ‘ez, goat.

for which the lot for the LORD comes up: This translation renders the Hebrew verb literally. The use of that verb may be dictated by the fact that the lots were in all likelihood pulled up out of a box or urn.

to send it off to Azazel in the wilderness: Approximate analogues to the so-called scapegoat ritual, using different animals, appear in several different Mesopotamian texts. The origins of the practice are surely in an archaic idea—that the polluting substance generated by the transgressions of the people is physically carried away by the goat. Azazel is not represented as a competing deity (or demon) rivaling YHWH, but the ritual depends upon a polarity between YHWH/the pale of human civilization and Azazel/the remote wilderness, the realm of disorder and raw formlessness. An unapologetic reading might make out the trace of a mythological plot, even if it is no more than vestigial in this monotheistic context. It is as though the goat piled with impurities were being sent back to the primordial realm of “welter and waste” before the delineated world came into being, but that realm here is given an animal-or-demon tag. The early rabbis, extending the momentum of the ritual, imagined the goat as being pushed off a high cliff, but in our text it is merely sent out, or set free, in the wild wilderness that is the realm of Azazel.

Jewish Study Bible:

The use of the two goats is similar to that of the two birds in Leviticus 14.4–7, 49–53. The lottery determines at random how each goat is to be used.

Azazel: The Rabbis cleverly divided this name into two words “ʿez ʾazel,” “the goat that goes away,” from which the traditional “scapegoat” is derived. It literally means “fierce god” and as intimated by the medieval exegete Abraham Ibn Ezra is evidently the name of a demon or deity believed to inhabit the wilderness. Thus the sins of the people are symbolically cast into the realm beyond civilization, to become the property of a being who is the antithesis of the God of Israel. Though Azazel accepts the goat bearing Israel’s sins as a sacrifice to him, this is no disloyalty to God since He Himself commands it, as Naḥmanides (Ramban) says: It is as though a king ordered “Give a portion [of this feast] to my servant so-and-so.”

Tree of Souls: The Mythology of Judaism by Howard Schwartz:

The custom of sending a scapegoat out into the desert as an offering to Azazel is clearly a remnant of a pagan ritual.

In Pirkei de-Rabbi Eliezer 51, God identifies the scapegoat as an atonement for Himself: “This he-goat shall be an atonement for Me, because I have diminished the size of the moon.” See “The Quarrel of the Sun and the Moon,” p. 112, which concludes with God diminishing the moon. We should not overlook the strangeness of God feeling the need to atone. This is reminiscent of Jung’s portrayal of God in Answer to Job. This is one more example of the kind of personification of God so commonly found in rabbinic sources, where God also studies Torah, suffers, mourns, puts on tallit and tefillin and prays.

Who was Azazel, to whom the scapegoat was sent? This appears to be a remnant of a pagan myth in which Azazel was some kind of desert god. Thus the scapegoat represents a sacrifice to the forces of evil. In modern Israel, the phrase “Lekh le Azazel” means “Go to hell!”

A description of the sacrifice of the scapegoat is found in B. Yoma 67a: “On Yom Kippur (the Day of Atonement) a goat was thrown off a high cliff in the desert, to atone for the sins of the Jews. A red ribbon was hung up in the Temple on that day. When the goat was thrown off the cliff, the ribbon turned white.” This description links the Temple and the sacrifice of the scapegoat, viewing it as a kind of remote Temple offering. The transformation of the ribbon from red to white confirms this.

What to make of all this, in the year 5779/2018? There is no Temple, no Tent of Meeting, no holy of holies. For most of us, there are no goats being chosen by lottery and sent to Azazel, and no Azazel.

Today we live and worship in the interpretation and symbolizing of these Torah stories and ancient roots. But at Yom Kippur, one thing to pay attention to in this is the role of randomness on this solemn occasion. It is not the only instance where randomness plays a part in the Torah.

In the Torah, of course, the seemingly random is no such thing. The lot pulled out of the box is supposedly pre-arranged by God (to quote from Leonard Cohen, as I did in my previous post, “everybody knows the dice are loaded.”)

Yom Kippur is arranged as a soul-searching transaction. Consider what you do, because when you do this that happens. Adding the element of randomness doesn’t change that; it just adds another dimension of reality. Things happen by cause and effect. Things also happen at random. The two are inextricably integrated. You can’t pick the “wrong” goat to send to Azazel, not because God fixed the lottery, but because it is always up to you, wandering like that goat in the wilderness. Just much more aware and thoughtful.

 

Leonard Cohen on Yom Kippur: Who By Fire

A signature prayer of the Days of Awe is Unatenah Tokef:

On Rosh Hashanah it is written, and on Yom Kippur it is sealed.
How many will pass and how many will be created?
Who will live and who will die?
Who in their time, and who not their time?
Who by fire and who by water?
Who by sword and who by beast?
Who by hunger and who by thirst?
Who by earthquake and who by drowning?
Who by strangling and who by stoning?
Who will rest and who will wander?
Who will be safe and who will be torn?
Who will be calm and who will be tormented?
Who will become poor and who will get rich?
Who will be made humble and who will be raised up?
But teshuvah and tefillah and tzedakah [return and prayer and righteous acts]
deflect the evil of the decree.

Unatenah Tokef inspired Leonard Cohen to write the song Who By Fire. He restates the prayer poetically, and adds this question:

And who shall I say is calling?

On Yom Kippur, some number of Jews who don’t usually attend services will find themselves not only at a service, but at one on the holiest day of the year, being asked to consider their lives in light of a theology of divine judgment. Some will believe that individual acts are weighed, some will believe that the whole year or a life are taken into account, and some will not believe in any of it at all.

That is where the question comes in. If you engage in the communication on Yom Kippur, or at any time, who is on either end? Is there someone here, is there someone there? Who shall I say is calling?

Who By Fire by Leonard Cohen:

And who by fire, who by water
Who in the sunshine, who in the night time
Who by high ordeal, who by common trial
Who in your merry merry month of May
Who by very slow decay
And who shall I say is calling?

And who in her lonely slip, who by barbiturate
Who in these realms of love, who by something blunt
And who by avalanche, who by powder
Who for his greed, who for his hunger
And who shall I say is calling?

And who by brave assent, who by accident
Who in solitude, who in this mirror
Who by his lady’s command, who by his own hand
Who in mortal chains, who in power
And who shall I say is calling?

Ray of Light: Trump’s Pardoning May Be Like a Slot Machine

The likelihood of any individual being pardoned by Trump will be affected by Trump’s craziness, unreliability and lack of loyalty. It will be like a slot machine. And that may be a good thing for justice and the rule of law.

Even though I have long accepted that Trump would try to pardon almost everyone who is charged or convicted in the course of the investigation, Paul Manafort’s plea agreement to cooperate raises an encouraging insight:

If you were one of the dozens of people who are getting caught in this net, facing possible years in prison, and Trump told you to your face—not just through an intermediary, not just through hints on Twitter—that you could expect a pardon, would you believe him and depend on him to keep his word?

Of course you wouldn’t believe him and depend on him to keep his word. Which means, just like Manafort, you have to hedge your bets. It is possible that if you agree to cooperate, Trump might still pardon you. On the other hand, if you agree to cooperate, Trump might go crazy and refuse to pardon you. And in the worst case, you might stonewall and take your punishment, but because of some crazy voices in Trump’s head, he might still refuse to pardon you. Who knows? With Trump it’s a roll of the dice, a spin of the slots. As a defendant, are you willing to bet ten or twenty years of your life on a Looney Tunes character? I bet not.

 

Key

Key

When you leave take the key
even for a few steps out the front door
out the back.
What if the door locks behind you?
Even if there’s someone inside
to hear you knocking pounding
ringing calling.
What if she locks it
not knowing where you are?
What if she needs help
and you are locked out helpless?
What if she knows and decides
that this trip to the trash
should be your last?
Only a few possibilities
there are more
prevented by that key in pocket.
One man’s prudence
built on irrefutable logic
is an observer’s key to personality.
What of it?
Analysis is theory
being locked out an inconvenient fact.
Take the key.