Could You Pass That Test?

According to several news outlets, a Justice Department inquiry into Hillary Clinton (launched some  two years ago at the insistence of conservatives unsatisfied with the results of multiple previous investigations) has effectively ended. Investigators found no wrongdoing, and (off the record) law enforcement officials said they never expected the effort to produce much of anything.

This inquiry was conducted by a Trump Justice Department headed by Bill Barr, not exactly a friendly group of investigators.

I’ve lost track of the number of investigations that have been conducted into Hillary Clinton’s activities. Whitewater. Bengazi. “But her emails!”

When I saw the headlines confirming that–once again–the investigators had come up empty, all I could think about was a joke my mother used to tell: an elderly woman goes into the butcher shop. She picks up a chicken, lifts each drumstick and sniffs under it; then she smells under each wing. Finally, she smells the cavity, turns to the butcher and says “Mr. Butcher, this bird stinks.”

To which the butcher replies, “Lady, could you pass that test?”

Partisans and others are certainly entitled to dislike Hillary Clinton, or to criticize her demeanor or campaign. Disagreement with her policy positions is clearly fair. But the intensity of the animus she arouses, and the persistence with which Republicans have hounded her–and continue to demonize her three years after she lost the election and (from all appearances) retired from political life– are so hysterical and disproportionate that you have to wonder just what is going on.

The obsession isn’t new, and it didn’t begin with her campaign for the Presidency. Throughout her public life, Clinton has been held to a standard that wildly exceeds expectations applied to male political figures. I can think of any number of male politicians who have exhibited every behavior and characteristic for which Clinton has been excoriated; none of them excited the level of vitriol that has been directed at her.

It is also worth noting that a substantial number of those male politicians have been found guilty of various levels of misbehavior–including crimes–while the incessant investigations into Clinton have uncovered nothing more culpable than occasional carelessness.

It is just impossible to see this relentless campaign as anything other than rank misogyny.

I am hopeful (although not entirely convinced) that Clinton generated that level of sexism simply because she was in many ways the first: the first First Lady to reject the traditional decorative and submissive role, the first to carve out a high-profile political career separate from that of her husband after leaving the White House; and the first woman to be the Presidential nominee of a major political party.

I am hopeful (although unconvinced) that in the wake of Clinton’s candidacy, the passage of time, the number of women in the Democratic Presidential primary, and the explosion in the number of women elected to positions at all levels of government have combined to moderate the sexist hostility that prompted the tsunami of vitriol directed at Clinton.

I am fearful that I’m wrong.

Donald Trump’s base is composed almost entirely of white Christian men who see Trump as their protector against the uppity blacks and pushy women whose demands for equality threaten their historic dominance. They became unhinged when an African-American was elected President, and it’s likely they will be equally threatened if it looks as if a woman is about to be elected.

Meanwhile, Hillary has emerged exonerated from yet another actual witch hunt– conducted by men who most definitely couldn’t pass that test.

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Nancy, Hillary And The Year Of The Woman

According to the media, this is “the year of the woman.”

More women are running for public office than ever before. The dramatic increase in political activism following the election began with Women’s Marches that turned out truly astonishing numbers of people, and political scientists who have studied the ongoing Resistance report that middle-aged suburban women are providing its backbone.

Many of these reports make it seem as if the dearth of female presence in Congress and Statehouses around the country is due to women’s previous lack of interest in running for office. Then America elected a male chauvinist pig as President, that election roused the sleeping maiden(s), and the surge in their political participation is the result.

If you accept that explanation, I have some swampland in Florida to sell you…

I’m not a fan of people who whine about victimization, but really, it takes a certain kind of obtuseness not to recognize the differences in the way political men and women are perceived and treated– the extra hurdles women candidates face, and the vicious demonization of those few who rise to positions of power.

Paul Krugman recently considered the case of Nancy Pelosi. He began by looking at the issues being raised by Republican Congressional candidates, noting that they weren’t running on the unpopular tax bill or even more unpopular trade war.

Instead, Republicans’ attack ads have increasingly focused on one of their usual boogeymen — or, rather, a boogeywoman: Nancy Pelosi, the former and possibly future speaker of the House.

So this seems like a good time to remind everyone that Pelosi is by far the greatest speaker of modern times and surely ranks among the most impressive people ever to hold that position. And it’s interesting to ask why she gets so little credit with the news media, and hence with the general public, for her accomplishments.

Krugman goes through a list of those accomplishments, which compare favorably to past Speakers we consider great (and which absolutely tower over the performance of Paul Ryan). Krugman notes that, compared with more modern House speakers–Gingrich, Hastert, Boehner, Ryan– Pelosi is a giant among dwarfs. But you’d never know that from her media coverage.

It’s quite a record. Oh, and whenever you hear Republicans claim that Pelosi is some kind of wild-eyed leftist, ask yourself, what’s so radical about protecting retirement income, expanding health care and reining in runaway bankers?

It’s probably also worth noting that Pelosi has been untouched by allegations of personal scandal, which is amazing given the right’s ability to manufacture such allegations out of thin air.

So why is Pelosi always portrayed as “divisive.” Why is she the preferred target of GOP attacks?

I mean, it’s true that she’s a political partisan — but no more so than any of the Republicans who preceded and followed her. Her policy stances are far less at odds with public opinion than, say, Ryan’s attempts to privatize Medicare and slash its funding. So what makes her “divisive”? The fact that Republicans keep attacking her? That would happen to any Democrat.

Or maybe it’s just the fact that she’s a woman — a woman who happens to have been far better at her job than any man in recent memory.

Ya’ think?

Hillary Clinton has been demonized for thirty years. It is certainly fair game to fault her campaign for miscalculations, or to recognize that she isn’t as charismatic as her husband. It’s fair to disagree with policy stances she’s taken. But she has performed admirably in every government position she’s held, and despite being constantly investigated, has never been found to have broken any law. Male officeholders routinely exhibit the behaviors for which she is excoriated, and almost never excite the same animosity.

Evidently, “uppity” women like Nancy and Hillary offend a lot of people’s notions of “proper womanhood.”

America has a lot at stake in November’s midterms. If–as I hope–there is a Democratic “wave,” a lot of Democratic women will be swept in with it. Along with all the other tasks facing them, they will need to join Elizabeth Warren, and persist— continuing the maddeningly slow process of culture change, normalizing the participation of women in government, and refusing to be stereotyped, demeaned and dismissed.

I hope it will prove to be the year of the woman. But we’re not there yet.

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The Election Was, Actually, Rigged

Among the many ironies of the 2016 election was Trump’s insistence that if he were to lose (and evidently only then), it would be evidence that the election was rigged.

The truth, as numerous election officials pointed out, is that tampering with the vote at polling sites–the only sort of “rigging” Trump would understand– is virtually impossible. Vote suppression is far more common.

That said, the actual “rigging” of American elections is quite legal; in fact, it’s baked into the system. I’ve written extensively about some of the more egregious examples, especially gerrymandering. But partisan redistricting isn’t the only structural element frustrating expression of the popular will.

Almost lost in the coverage of the election’s stunning result was the fact that Hillary Clinton won the popular vote. She lost in the Electoral College, a structural throwback to a different time that has increasingly distorted national elections and failed to reflect the will of the voters as expressed at the ballot box. This is the second time in 16 years that a candidate has won the popular vote only to lose the Electoral College and the Presidency.

Many of the problems with the Electoral College are widely recognized: the outsized influence it gives swing states, the lack of an incentive to vote if you favor the minority party in a winner-take-all state dominated by the other party, and the over-representation of rural and less populated states.

Whatever the original merits of the Electoral College, it operates today to disadvantage urban voters in favor of rural ones. Hillary Clinton’s voters were women, minorities, and educated Whites, and they were disproportionately urban; Trump supporters were primarily less-educated White Christian males, and they were overwhelmingly rural.

In today’s America, cities are growing and rural areas declining. That decline undoubtedly feeds much of the anger and white nationalism displayed by Trump voters. One can be sympathetic to rural concerns without, however, giving the votes of rural inhabitants (already favored by gerrymandering) greater weight than the votes of urban Americans.

In Baker v. Carr, the Supreme Court famously upheld the principle of “one person, one vote.” The operation of the Electoral College violates that fundamental democratic tenet.

The cost of living is higher in cities, and most of us who choose urban life are willing to pay a premium in return for the benefits offered by more cosmopolitan environments. But a reduction in the value of our vote shouldn’t be one of the added costs we incur.

It is time to get rid of the Electoral College.

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Media and Women

I was recently asked by the local chapter of the American Association of University Women to participate in a panel discussion on women’s role in journalism and the 2016 election. Preparing for that panel led me to some gloomy conclusions. (Yes, I know this blog has been getting more and more gloomy as the election season drags on..Sorry about that.)

Obviously, women’s roles and participation in media have both improved over the past decades; today, women anchor television news programs, pen op-eds, have bylines and author blogs. That increased media visibility accompanies other notable improvements in our various roles across the economic terrain.

That said, in my view, any discernible “differential” impact on the media landscape has been swallowed up by the far more consequential changes to that landscape generally. Any effect of an increase in female journalists has been more than countered by the massive losses–the hemorrhaging– in what has been called “the journalism of verification.”

In today’s surfeit of fluff and “click-bait,” celebrity has more influence and range than credibility or gravitas. So we have a buffoon (to put it as kindly as possible) running for President and a media environment in which lunatics like Ann Coulter and Shawn Hannity have as much or more influence as respectable reporters and editorial writers, male or female.

My conclusion to the earnest all-female audience at the panel discussion: I don’t think we can examine the role of women in journalism when we have lost journalism to “infotainment.”

And that reality doesn’t even address the unbelievable misogyny that has made Hillary Clinton virtually unrecognizable–a misogyny that has gone largely unchallenged by reporters of both genders who are worried more about generating twitter followers and “clicks” than about accuracy and context.

If Obama’s Presidency and the Clinton campaign have taught us anything (and that is a real question), it is that the emergence of leaders from previously marginalized groups (blacks, women) generates increased hostility from those who were previously privileged. Much of the opposition to President Obama has been shameful and nakedly racist; Hillary Clinton has been vilified ever since emerging on the political scene for failing to be “properly” feminine and deferential. Most of the vitriol lobbed at both of them has had little or no relationship to their actual flaws and/or missteps.

Although I applaud the notion of more women journalists–not to mention more female lawmakers, CEOs, and law firm partners– I doubt that such an increase will immediately or in the mid-term usher in a dramatic change from that still-sexist reality. Progress will continue to be incremental and–for some of us–agonizingly slow.

Actually, at this point, I’d happily settle for more real journalists–of any gender.

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Crime and Punishment

When I was practicing law, I often heard people complain about judges and prosecutors when those officials reached conclusions with which they disagreed. In most instances, the complaints were based on a lack of understanding of the facts of the case, the legal rules involved, or both. That was particularly true of criminal accusations.

Let’s say you are texting and driving. You know better; Public Service Announcements tell you how dangerous it is. Your mother tells you how dangerous it is. But your state has no law against it, and you think you’re in control. While you are texting, you crash into another car, injuring a passenger and totaling the vehicle.

Or let’s say you made the potato salad for the family’s picnic. It’s a really hot day and the sun is beating down. You know that foods with mayonnaise shouldn’t be left in the heat, but you are tending to other things. When everyone finally sits down to eat, several people get violently ill and it’s traced to the spoiled mayo.

Or let’s take a far more serious situation: you are one of those “good guys” with a gun. You bought it legally and have a permit to carry it. You have it in a holster, and for some reason, when you sit down, it discharges, killing a bystander.

In each of these scenarios, you have been responsible for harm. In none of them have you committed a crime, because criminal acts require something the law calls mens rea–criminal intent. In order for the state to charge you with a crime, it must have evidence that you intentionally committed a criminal act. Negligence and stupidity are not crimes.

That is not to say that your actions cannot be punished. In each of my examples, the persons harmed can bring civil actions against the negligent person who caused the harm, and can recover damages. In addition, your actions can be reported by the media, censured by your neighbors and provide reason for your boss and others to lose confidence in your judgment.

The FBI investigated Hillary Clinton’s use of her own email server, and found no evidence of intentional wrongdoing sufficient to charge her with a crime. The investigation found (and severely criticized) carelessness–both in Clinton’s handling of her emails and in what the agency characterized as the “culture” of the State Department. The conclusion was not that she hadn’t done anything wrong; the conclusion was that the wrong was not criminal in nature. (Click here for a more extensive explanation of the legal standards and relevant statutes.)

Individual voters can–and will–decide for themselves whether they think this particular breach of judgment makes Clinton unfit to be President. If she weren’t running against a certifiable psychopath, it might well cost her the election; but even if it doesn’t, even if she wins handily, it will cost her significant political capital (indeed, it already has) and will give additional ammunition to those who despise her.

Although it does not excuse her breach, the investigation’s discovery that many other State Department officials (including but not limited to Colin Powell and Condoleeza Rice) have used and continue to use personal servers because of the ponderous nature of the “official” system should lead to a formal review of the agency’s technology systems, and to an effort to improve the State Department’s evidently unwieldy system.

Rather than Congressional action that might reduce incentives to bypass the rules, however, we have Paul Ryan’s announcement that the GOP will now “investigate” the FBI for reaching a conclusion partisans dislike.

The FBI investigation was conducted by a Republican appointed by George W. Bush, a man with a reputation for independence and unimpeachable ethics. Ryan’s willingness to besmirch that reputation and impugn the credibility of the FBI in order to make political points is something we might expect from Donald Trump, but is exceedingly disappointing (albeit not surprising) coming from the Speaker of the House.

At some point, it would be nice if our political actors focused upon making government work better, and left toxic gamesmanship behind. But I’m not holding my breath.

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