Pushing buttons in the Oval Office/ and the respons/and addendum of Gorsuch

4/6/17

Those who hoped President Trump would be different than Candidate Trump, are now faced with the reality.  As I wrote to a friend, 

"You obviously have friends from around the world, especially the country of your birth, Germany.  I imagine just how enraged those people who didn't even get to vote are this morning, as the man we put into office, went from synapse to action in seconds, this time not a bizarre tweet, but by giving an order, proverbially pressing the button.  This time it unleashed 50 cruise missiles with a few hundred thousand pounds of explosives.   But, ominously, it showed that when he, as Commander in Chief, does order an attack, the chain of command follows though.  Orders are orders, and if another time that button was for a similar number of explosive power, except not in pounds but Megatons............

I don't have to finish the story, as few would be around to worry about it if, God forbid, he were to be so inclined.  Things are moving too fast for my usual essays, as by the time they get from idea, to draft to final polishing (as if they were to be read by more than my handful of fans) our commander and chief has revised his fantastical accusations/proclamations.  A few weeks ago our country's greatest concern was that Trump was too close with Putin, and this was somehow, outside of legitimate concern on his influence on the election, a bad thing.  One of Trump's rare reasonable statements was to the effect,"what's so bad about the U.S. having better relationships with Russia?" 

The problem of having someone in this awesome position of authority with zero experience is not evil intentions but a mercurial nature with a disinterest in understanding consequences.  "Nobody knew that health care was so complicated" he stated.  Ironically, had he replaced "nobody" with "I" it would have been heartening, meaning I really need help here;  but what he said was compounding his ignorance by the phrase being reasonably restated as, "I have as much knowledge about health care as anybody."  O.K. destroying the level of health coverage we have achieved with ACA will "only" cause death and suffering to some additional tens of millions, but his firing missiles at a country we are not at war at, that happens be allied with a country that can match our thousands of H-bombs ..........

The LA Times is publishing perhaps the longest editorial in history, so far in six parts under the rubric "Our Dishonest President"  Here's my letter to the editor that they just printed.
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To the Editor:

This editorial series will not be read by the one third of the population who still admires and supports President Trump.  While this demographic can be demeaned or ridiculed by those who applaud this editorial, there is the harsh reality that the structure of the United States Constitution allows a minority to choose a President, which over the unimaginable expansion of this country now has the plenary power to do what Donald Trump is doing.

There should be no comfort in explicating the depredations of President Trump, as if such an articulation will inherently lead to his downfall.  His power is what was given the leader of a weak country with no military that was closer to the stone age than what our world has become.  Mr. Trump is reveling in this power, with his acolytes sharing vicarious pleasure in destroying the intellectual-technical infrastructure that had provided hope for weathering the immense challenges that face our world. 

Al Rodbell
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Addendum 4/10/17

Hi Ron

                    If you choose, please forward this to Justin, whom I can safely assume is no longer with the Dept of Justice

I just came across this interesting this article in Politico, that describes how Judge Merrick Gardner could have a more immediate effect in his current position than the one he was nominated for.  In his position as Chief Justice for the D.C. Court of Appeals he can, at the least, impede Trump's* scorched earth campaign against the administrative agency efforts over the last half century to provide for a healthier and more humane world.   *(I learned from their editing my last L.A. Times letter that he can be referred to as Trump or President Trump, but not "Mr. Trump.")

I spend more than sixty hours absorbed in the Gorsuch Judiciary Committee and then Floor discussion, including researching media articles and one decision of his that was never mentioned in any of the media or during the hearings. Republicans didn't have to work that hard beyond glowing generalities, since they knew he had the votes;  so Democrats took the role of prosecutors, making the case that he was an extension of existing conservative Justices, while some implying he was Trump's stooge.

It was this dissent, which can fairly be described as an extension of the Miranda decision written by another man whose entire identity before being on the Supreme Court was as a mainstream Republican, whose specific job as California Attorney General was to apprehend and convict criminals. If one reads this full dissent, we see an argument inimical to the "law and order" mentality that usually is associated with conservative ideology. 

This dissent from a ruling that allowed police to breach the virtual moat around the "castle that is a man's home" shows that a headline case such as the "frozen trucker" doesn't define a comprehensive philosophy. Here's the link 29/57 of the PDF.  A search of the internet did not return a copy of this by Gorsuch, as it was only referred to tangentially by some articles saying he had been both for and against law enforcement. 

After reading this, I concluded that it is inconsistent for one who is programed to support the right wing ideology to write an expansive dissent that would limit the capacity of the police to get evidence of a crime.  In this decision Gorsuch fits the pattern that I see in Earl Warren, who turned out to be far different than the law and order conservative that Eisenhower had intended to appoint. 

There was a deeper message for those who chose to use the confirmation hearings as an advanced seminar political studies.  Sadly, for the vast majority, it was more like a sports event, where we cheered for our team, while vilifying the messages of the opposition.  I expressed this in this letter published in the L.A. Times on their six part editorial dissecting the pathologies of the Trump administration:  
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To the Editor:

This editorial series will not be read by the one third of the population who still admires and supports President Trump.  While this demographic can be demeaned or ridiculed by those who applaud this editorial, there is the harsh reality that the structure of the United States Constitution allows a minority to choose a President, which over the unimaginable expansion of this country now has the plenary power to do what Donald Trump is doing.

There should be no comfort in explicating the depredations of President Trump, as if such an articulation will inherently lead to his downfall.  His power is what was given the leader of a weak country with no military that was closer to the stone age than what our world has become.  Mr. Trump is reveling in this power, with his acolytes sharing vicarious pleasure in destroying the intellectual-technical infrastructure that had provided hope for weathering the immense challenges that face our world.  
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The time I spent transfixed by the Gorsuch hearing was intellectually stimulating, but ultimately isolating.  To be well adjusted is to have a support group, friends, family or community where there are certain shared values.  Those without this often suffer, experiencing profound depression or as a reaction, of lashing out violently against enemies.  Here's an example of the affect, defined by this imperative to cognitive consonance, towards an important person, that is telling about the mentality of our current political parties.

Charles Schumer is generally associated with leading the opposition against the Hobby Lobby decision that ruled that a hand full of followers of a religious belief could impede thousands of their employees from obtaining contraception.  Could a reasonable argument be made that he was the primary person to be held responsible for the federal law that dictated this tenth circuit and Supreme Court decision.  I had never heard this, before this hearing explained the principle of the decisions, and then I did further research.  It goes like this:  Hobby Lobby was decided based on the Federal Law known as Religious Freedom Restoration Act, or RFRA, a law that happened to be described by Justice Paul Stevens as unconstitutionally breaching the First Amendment proscription against establishing a religion.  This law was introduced in the House by Representative Schumer, and passed both houses almost unanimously.  Schumer, the prime promoter of this law, was the major antagonist against Neil Gorsuch, who, like Alito on the high court, explained thay were obliged to enforce this law, and not modify it.  Was this just an excuse to gut ACA?  Based on reading both decisions, I don't think so.  Gorsuch even expressed some antipathy for this law, which he stated did not give him, as a judge, the right to modify it. 

Rooting for your political team does seem to involve a degree of willful ignorance, such as this small sample.  The current Democratic Leader promoted the law that allowed a hand full of religious extremists to impede ACA!  Or perhaps that Justice Ruth Bader Ginsburg, would not have voted for Roe v. Wade!  Or that  Hillary Clinton, only hours before the attack suggested we go further, to destroy all of the Syrian Air Force !  

What adds to the sense of hopelessness, were the interviews with Trumps top officials on Sunday talk shows.   First was Rex Tillerson, interviewed by Fared Zakaria.   This man who never read a book on Diplomacy as trade craft was oblivious to one particular term of art, "ultamatum" or one similar in  French "demarche"  Equally oblivious were similar questions to the Ambasidor to the U.N. and the National Security Advisor when all were asked about the priority of elimating President Assad or the Islamic State.  While each of the three were ambivalent they all said that they could all be priorities, and even when the answer evoked incredulity since the very word means to order, one in the front of the other and contingent being satisfied before proceeding, none of them chose to to answer but worse denied that such a choice had to be made. 

One gave the example of WWII where we fought Germany and Japan simultaneously.  The actual comparison with that war was between Nazi Germany and Soviet Russia.  To destroy one meant to allow the other to gain power, while an easier decision then since we had allied ourself with Russia, many understood that they were our potential enemy who would gain by the annihilation of Germany.  The harsh reality is that the conflict in Syria is a conundrum that has no solution, or none that would be articulated by this adminstration any more than the previous one.  

The simplistic dream that getting rid of a brutal dictator would give rise to an enlightened democracy has been refuted by both Iraq and Afghanistan.  We have replaced a cautious (or feckless) President with one who mistakes his impulsiveness with strength.  

This would certainly make a terrific movie --- if only it were fiction and at the end we would all walk home in the sunlight of a world that was muddling through as it had always been.  













"Trump, the Mesiah of our times" - in all of its connotations

It was refreshing to come across this article in Politico , "Donald Trump’s Fictional America" written by A.M. Rondon, that captured so much of my own thinking. In effect, he coherently states that Donald Trump's destruction of language as the vital tool of rationality is not a defect of his program, but its essence. Radon focuses on the similarity between Donald Trump and Chevez who while beloved when dictator of Venezuela, even in it's current failed state of poverty and violence is still revered by many.   
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Trumps war on rationality is a requirement for his political success, yet his opponents show no inclination towards accepting this.  The L.A. Times is starting a three part editorial against him with one titled, Our Dishonest President, as though he were "only dishonest" which implies presenting a coherent alternative reasonable theory of events.  No, he is attacking reason itself and what he offers is not alien as it is a version of what most Americans espouse to some degree or the other, a specific definition of religion.  In the “establishment clause, the first freedom uses a single word, “religion.”  But it has two distinct meanings, as well defined in Dictionary.com :
1: A set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing human affairs.
2: A specific fundamental set of beliefs and practices generally agreed upon by a number of persons

#1 religions would be the three Abrahamic ones, among many hundreds of others.  #2 would include Universalist Unitarian, Scientology and one founded by a notable atheist,  First Amendmist Church of True Science — F.A.C.T.S

In the U.S., both #1 and #2 religions are treated the same in areas such as tax benefits and zoning along with the extra protection provided by RFRA.

There is a more profound contrast between #1 and #2 religions.  It is that the former includes a commitment and belief in the supernatural, that all that we know from our naive observations to the most arcane understandings of the scientific endeavor are subject to being overruled by the dogma of their religion.  Death is not irreversible,  miracles do happen,  good and evil are not human constructs, but the essential nature of the world. This definition of religion, describes the abolition   of reality that is the central aspect of what I will call "Trumpism."  Truth is no longer that which can be confirmed by research into the nature of things, but by the source of the utterance.  Christianity only took root when Jesus and God became one, accompanied by the ineffable "holy ghost." 

For the #1 religions, and those who espouse them,  not only is global warming a hoax, but so could be anything or everything that has been explained by the formal or unarticulated principles of the scientific method.

Vice President Mike Pence in his proclamation, “ I am, first of all, a Christian," defined who he was  In contrast, Donald J. Trump, while welcoming #1 Christians and Jews into his electoral coalition, shows no evidence of being one himself.  What he is doing fits a pattern, that his claiming faith in any God or Mesiah he would preclude that he is the one, the savior of all who suffer in this world.   He ignores the similarity of the three Abrahamic religions by turning Islam into the evil outside threat, a device that is essential to any would be autocratic leader.

Now to turn the page:


In a similar way when Representative Charles Schumer sponsored this law elevating all religions over non-religion, being a secular Jew it is unlikely that this was done for other than political expediency.  He expresses no contrition for sponsoring this bill, accurately described by John Paul Stevens in his concurrence as being a violation of the first amendment of our Constitution.  Schumer is to the bone a politician, in the worst meaning of the word.  His motivations and thinking is limited to amassing power, in his case entwined with the Democratic party.  This individual is, as I write this, about to precipitate the culmination of destroying the unique aspect of the United States Senate, which was that the minority party would commonly have the ability to prevent the will of the majority, by use of the filibuster maintaining.

I write this as the slow motion train wreck of Senate Democrats, in an act of destruction that can only be described as a petulant child's destroying his favorite toy to show his rage at not getting his way, is about to start the chain of events that will end the traditional rights of a minority in choosing a member of the Supreme Court.   The New York Times, in this editorial still blaming Republicans, had this to say about the pragmatic harm to Democrats of forcing the Nuclear Option.

Whether legitimately outraged at Mr. McConnell’s treatment of the Garland nomination or opposed to Judge Gorsuch on the merits, if they lose the filibuster now — as they will — then it is not available to use against another Trump nominee, who may be objectionable not only to Democrats but to a few Republicans, as well. Yes, the Republicans could possibly strip the filibuster away the next time, too. But surely having some slight chance of being able to deploy it to stop a renegade justice is better than having no chance at all. And the danger some Democrats appear to fear of seeming naïve by clinging to a goal of bipartisan support for the court seems less acute than the certainty of their appearing ineffectual in a futile effort to block the Gorsuch appointment.
Schumer and the Dailykos followers ignored not only the harm to their party but to the institution of the Senate and will continue to make their case as this is being written.

The justification for Republicans not considering Garland enhanced by this speech on the Senate floor in 1992 by Chair of the Judiciary Committee Joe Biden, it's meaning contended by Democrats as not applicable.  My own careful reading is that it certainly does show the intent of the majority Senate democrats to do in 1992, exactly what the majority Republicans did in 2016.

Conclusion:

Donald Trump is destroying the office of the President, while the Democratic party is destroying a major element of the United States Senate.  This is personally depressing, and the depredations of one does not justify that of the other.  Now to go back to CSPAN and watch as the proverbial train of the U.S. Senate gets closer to the bridge over the chasm that has collapsed, with no one on the train having the ability to prevent the approaching disaster. 

After spending the day watching the statements of Democratic  Senators I'm no longer convinced that Neil Gorsuch is the independent jurist that I had believed.  Senior Democrats  with a deep understanding of the intersection of politics and law such as  Tim Kaine, who had been a law professor delved into the details of specific decisions by Gorsuch, that were enlightening.  I leaned just why the "Chevron preference" and "plain language" were important terms of art that Gorsuch had breached, all with a certain bias.

I had now spent close to 40 hours watching these hearings and floor discussions, and it seemed more clear that Judge Posner's observation, made by many others, that Supreme Court decisions are commonly reflections of the Justice's values, and not as claimed simply calling balls and strikes. It is all but certain that the filibuster elimination will now include Supreme Court Justices.





  

    

Gorsuch-- in the steps of Scalia or of Stevens

3/23/17

The  Senate hearing on the confirmation of Neil Gorsuch has been viewed exclusively through a partisan lens -- with contempt by those who see him as a proxy for President Trump. The twenty hours describing his practices of judgeship, including detailed explanations of dozens of  cases that he participated in, was a master course in the interplay of the three branches of our federal government and the prerogatives of the fifty States.  These forces are all in play in a case that was a blow to the ACA, and thus the decision that he authored excoriated by Democrats

The "Hobby Lobby" decision where he supported the family-owners in refusing to cooperate with the ACA requirement was based on  the Religious Freedom Restoration Act- RFRA which mandated extra-deference to religious beliefs, or strict construction in evaluating the acceptability of any restrictions on adherents.  This replaced the previous common law which required that religious groups, while protected against restrictions because of their faith, were bound by general rules.  This bill was passed almost unanimously by Congress, yet was partially overruled by the Supreme Court. (I suggest that those interested in the details go to the the previous link)   Gorsuch, (and later Alito on the Supreme Court,) made the case that it was adherence to RFRA that controlled his decision.  RIFA was a law introduced in the House by Rep Chuck Schumer and supported by Sen. Ted Kennedy that passed Congress almost unanimously .

This law redefined the first amendment by elevating "religious" above the other four distinct freedoms. I quote this concurrence with the decision, that finds it did not go far enough in weakening the statute that was only partially overruled:
   Justice Paul Stevens, concurring:  
 In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a “law respecting an establishment of religion” that violates the First Amendment to the Constitution.

     If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure.  Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52—55 (1985).

 Elaborating on Justice Stevens position, lets look at the first amendment:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances clause, “

In the “establishment clause, the first freedom uses a single word, “religion” that has two meanings, well defined in Dictionary.com :
1: A set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman agency or agencies, usually involving devotional and ritual observances, and often containing a moral code governing human affairs.
2: A specific fundamental set of beliefs and practices generally agreed upon by a number of persons

#1 religions would be the three Abrahamic ones, among many hundreds of others.  #2 would include Universalist Unitarian, Scientology and First Amendmist Church of True Science — F.A.C.T.S
In the U.S., both #1 and #2 religions are treated the same in areas such as tax benefits and zoning along with the extra protection provided by RFRA.

There is a more profound contrast between #1 and #2 religions.  It is that the former includes a commitment and belief in the supernatural, that all that we know from our naive observations to the most arcane understandings of the scientific endeavor are subject to being overruled by the dogma of their religion.  Death is not irreversible,  miracles do happen,  good and evil are not human constructs, but the essential nature of the world.  For the #1 religions, and those who espouse them,  not only is global warming a hoax, but so could be anything or everything that has been explained by the formal or unarticulated principles of the scientific method.

Vice President Mike Pence in his proclamation, “ I am a Christian, a Conservative and a Republican, in that order"  makes his identity known, never reaching “American” whose values and laws are thus subordinate to the edicts of his Christianity.   In contrast, Donald J. Trump,  while welcoming #1 Christians and Jews into his electoral coalition, shows no evidence of being one himself.  In a similar way when Representative Charles Schumer sponsored this law, being a secular Jew it is unlikely that this was done for other than political expediency.  Of course the same accusation can be made against most of those five hundred Congresspersons who voted for this law.
  
What did it take to allow  John Paul Stevens  to write his cogent clear observation on the RFRA case, something that no individual in electoral politics could do -- then or now.  It certainly could not have been gleaned from his Republican political affiliations, or his conservative decisions on the Court of Appeals.  His hearing in 1975 (It’s all here) was a non partisan affair with letters of recommendation from two-time Democratic Presidential nominee Adlai Stevenson among many others.  He had been appointed to the appeals court by Richard Nixon, and the Supreme Court by Jerald Ford, replacing the most liberal Justice in history, William Douglas.  Were the Democrats outraged by this partisan selection?  Not exactly, as there was not a single vote against his confirmation..
 
And then Stevens, who like Neil Gorsuch, was a brilliant scholar with the humanity and courage of his convictions, performed his duties on this highest of courts that brought to bear this intellect and integrity.  He never asked himself when analyzing a case what outcome will benefit one side or another, but balanced precedent with something deeper.  He, among all of those in Government when RFRA was being considered, could actually understand the minds of our founders, those deist- rationalists who would never have allowed #1 type religions to dominate the nation they were defining.

I'm convinced that Neil Gorsuch has the best potential to become an independently minded Justice who would, at the least, emulate Stevens; with the possibility of his growing into a transformational figure such as Justice Earl Warren.  The cathartic rage of a Democratic filibuster, ironically led by Charles Schumer, the sponsor of RFRA, may provide immediate satisfaction;  but it will only escalate the further erosion of the now quaint civility of John Paul Steven’s unanimous confirmation four decades ago..
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Addendum  1:

Gorsuch's first vote, only a week after his joining the court, (See N.Y. Times Editorial) to allow a man to be executed when there was Supreme Court precedent that would have spared him, cast doubt on my position in this essay.  His identity with Republic conservatism seems more likely now to define his tenure on the court. 

Addendum  2:

This statement (82/234 PDF) made by the President of NOW. at Steven's hearing, lists the litany of his decisions that went against women's equality that had been recently enshrined in federal civil rights laws. Unlike cases decided by Gorsuch that were antithetical to current standards of equal rights, there were no balancing supportive opinions. Yet, this statement by the same organization of appreciation of his thirty five years of decisions supporting women's rights at his retirement, shows that the past was not prologue in his case.

My argument above is that there is a probability that Gorsuch will be like a Paul Stevens, but the fear of Democrats is that he will be another Antonin Scalia. These two served together for a quarter century, so given the commonality of their pre-court conservative history, a complete evaluation of how they differed, and they mostly did, would be illuminating, but lengthy. Among their opposite positions are an array of abortion cases. Stevens espoused the pro-choice position while Scalia was adamantly pro-life to the the degree of favoring reversal of  Roe v. Wade.  In the landmark Heller decision both reached back to the original interpretation of the second amendment, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed" each coming to opposing conclusions of the founders meaning.

Both of these jurists were independent thinkers, which allowed a switch of roles where it was Stevens who took the conservative position that burning the American Flag could be criminalized, whereas Scalia stood firm that it was symbolic speech protected by our First Amendment in Texas v. Johnson 1989.  This case illustrates not only the complexity of thought and discussion within the Court, but how in any legislature those who would have protected burning of the American Flag would not only have had their electoral career ended, but could have faced violent retribution.

It is the same first amendment "Free speech absolutism" that underpinned the right of powerful giant corporations unlimited voice in elections in Citizens United that also protected enraged self destructive protesters to burn our national emblem. Perhaps this is why, as few would guess, the very liberal ACU supported this decision. 

Neil Gorsuch responding to twenty hours of challenging questions seemed to actually enliven him, as if he relished the opportunity to articulate just how and why courts are different than elected bodies.  Demagoguery, to some degrees is what electoral politics is about, but no judge should ever consult an opinion survey.  The Supreme Court is more than being objective, as values of the Justices do matter. As we see in the examples of Antonin Scalia and John Paul Stevens, there is no way to predict the evolution of a Justice when on the bench.  From my fairly extensive study of Neil Gorsuch, he will provide that mix of reason and humanity that is so vital at this moment in time. 

addendum:  6,28,17

Gorsuch has now participated in several decisions, and he has joined Alito and Thomas in one, and the other it was only Thomas.  If my hope is to turn out to have any validity, it will be a long process, as now he is more extreme than Scalia.  Wishful thinking is a powerful force 

N.Y. Times' distorted summary of appeals court decision

12/1/2015


I Sent a first draft of the email below on the day of print.  After no response, did more research and sent this revised email on 12/24  

Public Editor, N.Y. Times

The article contains this paragraph:

A divided 16-member panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected Mr. Bell’s First Amendment challenge. Judge Rhesa Hawkins Barksdale, writing for the majority, said the song was “incredibly profane and vulgar” and contained “numerous spelling and grammatical errors.”  “If there is to be education,” Judge Barksdale wrote, “such conduct cannot be permitted.”

The wording and context of the above paragraph strongly implies that both of the two elements of the lyrics, including "numerous spelling and grammatical errors" were aspects that were considered in deeming that the posting was not protected speech. I was surprised and shocked that spelling and grammatical errors could ever have limited first amendment protections.

On pp 3 of the PDF transcript the context was clear. Justice Barksdale's statement was appropriate, as the exact transcription of the rap lyrics was needed to evaluate aspects that could impact the case.  The quoted reference to spelling and grammatical errors was in lieu of  multiple uses of "sic" deemed legitimate -- as described in this explanation from the Columbia School of Journalism.

The New York Times appears to have trivialized and distorted the process of the jurists arriving at their decision.  If that is the case, the reporter who was tasked with reading the entire decision appears to have done this intentionally if not being grossly incompetent.

Please get back to me on this, as I presume others have contacted you on this issue.

Regards
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 Addendum:

101 page report on case from the Fifth Circuit Court of appeal; first 34 pages are decision by Judge Barksdale that was summarized in disputed paragraph in N.Y. Times quoted above.   

PDF of Writ for Petition of Certiorari to The Supreme Court.    

This video has the recording and commentary of the rap song, and a version of the text that is also included in the full  transcript of the appeals court case.

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I sent the following to the author, who is a Colombia University. Law Professor:

Mr. Adam Liptak.

Your summary of the Taylor Bell 5th circuit decision appears to be seriously flawed as described in link below .  Perhaps since the article was not specifically on this, you may not have studied it, in which case you owe Justice Barksdale an apology, and a correction for the record

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Response from Times Editor who was forwarded the complaint to the public editor (ombudsman):


Subject:
Re: Fw: Serious error in article on Taylor Bell Rap Lyrics Decision

Dear Mr. Rodbell,
Thanks for your email, which was forwarded to us from the Public Editor's office (we handle factual corrections). We understand your concern, but after reviewing this with an editor in our Washington bureau, who consulted with the reporter, we do not believe any correction is necessary.

It's a verbatim quotation from the decision that captures the judge's tone, which is what the reporter was trying to convey in this column about a clash between rap music and the legal culture. The column does not say that the case turned on that tone.

I hope this helps explain. Thanks again for taking the time to contact us, and for your careful reading of The Times.

All best wishes,

JO
Assistant to the Senior Editor for Standards
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I responded that I disagree and restated my objections; with no further response from standards editor or public editor of the N.Y. Times;
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During this period 12/22 or 23, the writer, Professor Liptak responded to me:
Dear Mr. Rodbell,

Thanks for writing and for your close reading of my article.

The quotation you discuss captures the judge's dismissive tone, which is what I tried to convey.  The opinion is, I think you will agree, shot through with that tone.  There was no risk that a reader would attribute "the numerous spelling and grammatical errors" of a high school student to a federal appeals court judge, but noting them certainly betrayed an attitude of superiority and condescension.

I didn't say the case turned on the judge's hostile tone, but I thought it was an interesting and telling point in a column about a clash between rap music and the legal culture.  

With all good wishes for the holidays,   

Adam Liptak
The New York Times
1627 I Street NW
Washington, DC  20006
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Liptak's last sentence of the first paragraph above is incoherent and does not address my accusation.  It is undisputed that "numerous spelling and grammatical errors" was a quote by the judge, thus attributed to him.  But these words in the 32 pages of the decision did not refer to the Judge's evaluation of the rap lyrics written by the student, but were part of a technical explanation for the reason the Judge did not add "sic" after each such non-standard word.  Given this was not an evaluation of the rap lyrics by Judge Barksdale, it certainly did not betray his attitude of superiority and condescension. It is Professor Liptak's collage of  words from the decision that falsely conveys to a reader that Judge Barksdale "betrayed" his attitude of superiority and condensation."

The effect of this collage, certified by the institution of The New York Times as a fair summary of the rationale for the decision, is to subliminally* convey to a fair minded reader that this decision of the court of appeals was a product of simplistic racism.  It could very well be that this is so, that the decision was tainted by such pre-existing biases of the majority articulated by Judge Barksdale, but Liptak gave no evidence of this by including a phrase that was falsely defined as a reason for the decision.  

I explained this to  Mr. Liptak, the Times editor of standards and the Public Editor on several occasions, even citing an article in the magazine of the Columbia School of Journalism that defines the appropriateness of such a technical explanation being included in a court decision.  

The early responses to this survey that I wrote asking whether the description of substandard spelling and grammar is perceived not only as a quote of the Federal Appeals Court Judge which is self evident, but one of the reasons for his arriving at the decision, are now in.  The results provide objective evidence to the accuracy of Liptak's explanation in his email above, "There was no risk that a reader would attribute "the numerous spelling and grammatical errors" of a high school student to a federal appeals court judge "  Over 90% of those who took the survey refute Liptak's explanation, that could be stated as   that lack of mastery of subjects taught in a high school English class, were one of the reasons the student was denied full 1st amendment rights.  

Such false simplification, and defamation of the person of the individual who purportedly wrote them, Judge Barksdale,  has an effect on public stereotypes of Southern judges, further exacerbating the vitriol of our partisan divide.  The accuracy of an institution with a reputation for integrity, is what elevates this beyond the accepted low level of public discourse on the crucial issue of our day.

*subliminal is applied to the hundreds of thousands of readers of the N.Y. Times article that contained the instant paragraph, who did not consciously respond to its being of doubtful accuracy.
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I described this to  Eugene Volohk. a law professor at UCLA who after reading Liptak's article responded with:

Good catch as to the spelling/grammar error point – it was indeed unrelated to Barksdale’s argument.  

The “incredibly profane and vulgar” point is a bit closer, because that phrase was at least in the same sentence as the argument that the song contained “threatening, harassing, and intimidating language,” and this intimidating quality of the language ended up being linked to the “such conduct cannot be permitted” point.  But there too I think you’re right, because Judge Barksdale isn’t saying that the song is intimidating because it’s profane and vulgar; he seems to be saying that it’s both profane and vulgar and, because of separate aspects of its content, intimidating.
----------- 
  
I wrote this email to Mr. Volohk, who had said he was planning to write about this in his column in The Washington Post (in part below)

I see this as a type of smoking gun for what The Times is often accused of by their opposition, purveying dogma under the flag of "all the news that's fit to print."

If I had not taken the effort, which wasn't that great, to click the link of the online article to the PDF of the decision to discover after three pages that the phrase, "numerous errors of grammar and spelling" was not a criticism of the rap song, but a technical explanation of the transcript, this distortion would not have been a non-event, only an invisible one.  The more than hundred thousand people who read this one article will have been further led to think that the blatant racism of the South extends to federal appeals courts in that still unreconstructed region of America.  The non effort at verification by those thousands of other readers says little about me .... but much about the passivity, and comfort in their biases of our country; and how the Times both feeds, and feeds on, this politically defined readership.
------------
My strong reaction to the distortion of the summary of the decision of this lawsuit was because it touches on so many stresses of our country.  Rap music is many things, an anthem of a violence-prone demographic but also a unique form of expression among this group.  Freedom of Speech is most sacrosanct in this country, but doesn't come without costs.  If this case is accepted by the Supreme court it will be up to the nine men and women, all white, except the sole Black member, ironically being the most likely to endorse limits on this dominantly Black mode of expression. 
This will be decided, even though  by a small unelected group, with their reasoning laid out for all to see. Not everyone has the time and inclination to read through court decisions, so most rely on the summaries of authoritative sources, such as The New York Times. If scores of pages are to be condensed in a few lines, any intentional bias must be prevented or corrected.  Unfortunately, in this case, the New York Times has chosen not to do this.      
-----------
Article posted on this by Eugene Volokh in his blog in The Washington Post 1/8/15
While he linked my contribution reflected in this page at the end of his article, he softened his clear agreement noted above that the summary of the case in the Times article was clearly out of context.  My suggestion that he clarify what I described as his "distortion of the Times' distortion," has not been taken up.
---------------------
On 1/16/16 I spoke to the media liaison employee of the Fifth Circuit Court, asking to connect with the author of the decision or those who joined with him.  He implied that such non-accurate interpretations are not rare,and  that "the written decision speaks for itself."  He went on to say  that we are not a public relations organization.

In spite of the spokesman's statement, the written decision, although linked from the Times article, only speaks when someone reads it.  If there is a deviation between the summary read by hundreds of thousands and the full decision, read by hundreds, then it takes those such as myself and Eugene Volokh to speak for the Justices who carefully analyzed and define their rationale for their decision,.

The New York Times, no matter how much past the date of the article, must acknowledge its distortion.
---------------------  ------------------
---------------------  ------------------
Event of 2011 - not directly related to the material above on the article by Adam Liptak
-----------------------
The following is a description of my intervention with the New York Times for an error in reporting in 2011.  It is included in this posting about the above 2015 article on an Appeals Court decision to show my expectation of respectful cooperation with readers whose attempt is to improve the accuracy of this news organization.  A careful reading, from bottom to top for chronology, shows the contrast to circle-the-wagons mentality that I am currently challenging.  Abby Goodnough was the reporter for the Times.  Who supported both of my suggested corrections, even though only one was appended to the article. 


I see what you mean about the photo caption, which I did not write or even see until now. I’ve told the editors we should run a correction. 

Thanks, Abby
 


From: Al Rodbell [mailto: alvrdb-brt@yahoo.com ]
Sent: Wednesday, October 05, 2011 11:18 PM
To: Goodnough, Abby
Cc: nytimes, public
Subject: RE: READER MAIL: Abby Goodnough
 
Abby Goodnough
Reporter, N.Y. Times
 
Dear Ms. Goodnough
 
Thanks for your response.
 
You wrote "  I did not assume it was a large airplane and don't believe the story implies that."  
 
You may know what you assumed, but a writer is always the worst person to know what an audience will infer.  This is dependent on their background knowledge,mindset and specific knowledge of the subject.  Anyone who had seen a news report, almost all of them using the term model or toy planes, would not be confused at all.   But those who had not, like myself, and others whom I sent a link of your article,, asking "what is the approximate wingspan of the plane, 5 ft or 50ft?" were not clear that it was closer to five feet.   I can send you the exchange of letters if interested.      
 
To understand my motivation for pursuing this you may want to read this article that was the only comprehensive defense of the recent N.Y. Times piece on Darrell Issa that appeared in his California congressional district.   I predicated it on the inherent accuracy of the N.Y. Times, which makes me feel I have a right, and an obligation to ensure that this trust continues to be justified. 
 
I suggest you read again the comment by user G2Geek, who, based on other comments, seems to have expertise in this area of counter terrorism.  He explains the potential public harm of your article leading/allowing some to believe it was a full size drone,   
 
I have no desire to personally criticize you, as your reporting should not be evaluated on any single article.  Since the DOJ report was unclear, and you were constrained by quoting their ambiguous words,  even though you understood that it was a small plane, the article was, in fact, confusing to, at the least, some of your readers.
 
A close reading of the DOJ press release shows the conflicting purposes of their report; assuring the public that there never was a real danger, yet by calling the weapon a "large remote controlled aircraft filled with C-4 plastic explosives." pointing out the massive harm that was averted.  The report describes the drone in two different places once as "large" and later as "small" reflecting their mixed message that while there never was a danger, it was a really big danger that there never was!.  
 
The caption of the photo is clearly misleading.  If it was supplied by the Times, this too should be corrected.  Rather than " A model of an F-86 drone, a real version of which was reportedly given to the suspect, it should read,something like " A model of an F-86 drone like to the one reported procured by the accused"   This single additional correction would clear up any remaining ambiguity.  
 
I have copied this exchange of emails to the public editor whom I had emailed previously  
 
Regards
 
Al Rodbell
Encinitas CA
 
 

--- On Wed, 10/5/11, Goodnough, Abby wrote:

From: Goodnough, Abby
Subject: RE: READER MAIL: Abby Goodnough
To: " alvrdb-brt@yahoo.com " < alvrdb-brt@yahoo.com >
Date: Wednesday, October 5, 2011, 2:50 PM
Dear Mr. Rodbell,

Thank you for your e-mails. I read your post on dailykos. You are correct about the fact that the undercover agents did not directly provide Ferdaus with a plane; they gave him the money for it. We are running a correction on this.

I don't, however, believe any other correction is warranted. I did not assume it was a large airplane and don't believe the story implies that.

Best, Abby Goodnough

-----Original Message-----
From: ordercs@nytimes.com [mailto:ordercs@nytimes.com]
Sent: Wednesday, October 05, 2011 5:20 PM
To: Goodnough, Abby
Subject: READER MAIL: Abby Goodnough


Email: alvrdb-brt@yahoo.com
URL:
Comments:
Abby,

No response from anyone at the Times. Wrote another article on Dailykos with the Times target of my criticism, but I carefully read the DOJ report and understand how you could have been confused, as they began by describing the plane as " large remote controlled aircraft" and that could have been confused with an actual drone aircraft.and only later use the words,"Ferdaus stated that he planned to attack the Pentagon using aircraft similar to "small drone airplanes" filled with explosives and guided by GPS equipment"

I assume the caption on the photo was yours, and not from the DOJ. as you appear to have assumed that it was a full size airplane. I may be the only one on this right now, and I'm a N.Y. Times fan. The article should have a correction added that clears up any confusion.

The integrity of this paper means more than any employee, executive or reader. So, let's acknowledge that there was confusion, and by doing so preserve the Times reputation.

Al Rodbell

Here's the dailykos essay

http://www.dailykos.com/story/2011/10/05/1022865/-NYTimes-circles-the-wagons?showAll=yes&via=blog_475686

If your article was misleading, so was the DOJs release, which raises other serious issues. I don't want to let this drop for reasons I alude to in my essay, as we all must learn from this.

Al Rodbell


Clear analysis of Liptak summary, by retired lawyer,  Robert B.

Hi Al
The excerpt from the article (in the Times) you quote is very misleading.  It suggests Judge Barksdale ruled that a rap song was not protected by the First Amendment solely because it was "incredibly profane and vulgar and contained numerous spelling and grammatical errors".  And went on to state "if there is to be education,  such conduct cannot be permitted". I read  the entire 33-page opinion by Judge Barksdale, and I interpret it to mean the song, and the way it was published, was not protected under the First Amendment because it was "threatening, harassing and intimidating" to two teachers at the school, and that it "caused a substantial disruption at the school or could reasonably be believed to cause one".

By the way, the Judge is correct in saying the words of the song are incredibly profane and vulgar.  I suggest you read the words in question, and see if you agree.  But that would not have deprived them of First Amendment protection.  Instead, that was due to the fact that they threatened, harassed and intimidated two particular individuals (two teachers at the school)---in this regard, the song stated, among other things, "You've f----d with the wrong one/going to ---a pistol down your mouth/ POW, and warning them "to watch {their} backs" and that they would "get no mercy" when such actions were taken.

The punishment the school dealt out to Mr. Bell ( the student involved) was a temporary suspension and placement in an alternative-education program for the remainder of the nine-week grading term.  What are your views on that?

Bob
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This was my comment to the last article posted by ombudsman Margaret Sullivan.  She wrote a paragraph on each of five impediments to her doing her job, that of raising the standards and integrity of The New York Times.  I focus on one them in my comment that follows:


How true is this:

 "3. Defensiveness. Although The Times runs many corrections and has two staff people, including a senior editor, whose main job is correcting errors, it’s safe to say that many Times journalists find it hard to admit they got something wrong. In fact, what’s much more likely than any such admission is the tendency to double down"
 ---------------- 
In a world where spin, distortion and lack of integrity is almost ubiquitous, I had somehow believed that the N.Y. Times rose above it. This is about something that would have been meaningless is a lesser newspaper, but the Times is seen as special. Friends challenged my claim, arguing that one as esteemed as being not only a reporter, but a professor of law and journalism would have no motivation to write such an obvious distortion. 

 The only explanation is to show that he could, and that the Times would back him up. This tells the story, with link at the end to correspondence with editors, writer and many others. The problem is this isn't egregious, and only shows me that the Times is no better than the others. 

http://publictennis.blogspot.com/2016/02/the-virus-of-toxic-partisanship.html 

 Margaret, it's not to late to run a correction. 

 AlRodbell.com
 -----------
This comment was never posted, but it provides the answer that I have been seeking in this long endeavor.