Saturday, February 25, 2017

Keith Ellison for DNC Chair


It wasn’t long ago when, on this page, I was highly critical of a statement attributed to Keith Ellison.  This was something Ellison allegedly said several years ago, and yet it still bothered me because it sounded not only anti-Israel but deeply insensitive to the history of the Jewish people.  As a proud Jewish Zionist, I felt compelled to confront the statement and not sugar coat it. 

Coming as he does from the Bernie Sanders wing of the Democratic Party, Keith Ellison’s attitude toward Israel/Palestine scares me.   I hear him say that he is pro “two state solution,” but then again, J Street calls itself pro “two state solution.”  And yet J Street is addicted to criticizing Israel infinitely more often than it criticizes the Palestinians; that makes it insufficiently “pro Israel” for my sensibilities.  I am very willing to criticize Israel publicly, but if you’re truly “pro peace,” you’ve got to criticize both sides for their failures.  Any organization that picks and chooses in as skewed a manner as J Street does not speak for me.  And I suspect that when it comes to the level of his support for Israel -- and his commitment to Zionism -- Keith probably doesn't speak for me either.

So, it is with some legitimate concern ... that I nonetheless must announce my support for Keith Ellison for the Chair of the Democratic Party.  If I truly saw him as a rank anti-Semite, I would not make this endorsement, but I don’t see him that way.  Nor do I see him as someone who would try to abandon Israel as a strong American ally.  Like Bernie, I see him as insufficiently pro-Israel.   But also like Bernie, I believe that he wants to take the Democratic Party in a general direction that it needs to head.   I see Keith Ellison as an activist who is capable of inspiring activists – a person whose devotion to the underprivileged is lifelong and uncompromising.   

For decades, dating back to William Jefferson Clinton, the Democratic Party has lost its soul.  I don’t know what it stands for any more, except for the right of a politician to call herself a progressive and charge public universities $250,000-$275,000 for a one-hour speech (or $65,000 for their daughter to give a 10 minute speech).    That’s not a progressive; that’s an opportunist.  Besides, we need the party to be led by men and women who at least slightly resemble the people they want to lead.  

The folks who support Keith Ellison’s opponent want to talk about how the Democrats did just fine in 2016, winning the popular vote by 3 million people.  Well, that’s one way of putting it.  Another way of putting it is that they’ve been drubbed in the House, the Senate, and the State Houses, and they couldn’t even defeat a Presidential candidate with unparalleled disapproval ratings.   The folks who support Keith Ellison’s opponent were largely the same Einsteins who re-elected Nancy Pelosi as the Minority Leader of the House of Representatives.   Seriously?   Didn’t she serve as a leader of an ever-shrinking party?  So you re-elect her?   You would think that the Democrats’ establishment wing would get the message – it’s time for a real change.  You would think that the Democrats’ establishment wing would realize that the Berniecrats are the ones with all the grass-roots energy, and we might as well give them a chance to see if they can bottle that energy and turn it into a powerful, election-changing movement.  

But I suspect you’d be wrong.  My expectation is that by the end of the day, Keith Ellison will have lost.  The Democrats will once again rebuke the activist wing of the party.  And my fellow Harvard Law School alumns will be celebrating in their Chevy Chase homes with the Chablis of their choice, relishing in the fact that one of our own – Mr. Tom Perez – will be stepping up to lead the Democratic Party.    Surely, he will be the toast of the DC and New York law firms during the next several weeks, and the cash registers will go ka-ching, ka-ching.   For that is where you can find the heart and soul of Hillary’s and Nancy’s Democratic Party.   It’s a party led by a group of highly-affluent elites who somehow think they can sound authentic speaking up for the masses.


Please.   Limousine liberals couldn’t fool the people of Pennsylvania, Ohio, Michigan and Wisconsin.   Bernie would have had a better shot; he, at least, comes across as a man of the people.  So does Keith.  He has my support, notwithstanding our disagreements.  And I say this without any animosity or disrespect for Tom Perez or the other candidates running.  I just want Bernie and Keith to get their shot at running the show.  

Monday, February 20, 2017

Baby, You Haven't Come Such a Long Way After All



Katie Lou Samuelson

Moriah Jefferson

Morgan Tuck

Have you ever heard of them?

How about Breanna Stewart?

Tina Charles?

Familiar with those names?

Maya Moore?

Still no?  I’m not surprised.   Those are among the names most responsible for the University of Connecticut basketball team’s two insanely long winning streaks in the past decade – a 90-game winning streak that went on from 2008-2011, and a 101-game winning streak that started in 2014 and is still going strong.   The individuals listed above should be household names, but they’re not.   And that, of course, is because those phenomenal athletes are women.  Imagine a men’s team with two winning streaks totaling nearly 200 games, or even half that long.  Somehow, I doubt its top players would be laboring in obscurity.

This was supposed to be the year of the woman.   We were supposed to have the first female President in history by now.  Remember her?   There are a number of reasons why Hillary is in New York and Donald is in the White House, and much of the blame can surely be placed on Hillary and the DNC.   But just as surely, Hillary was also the victim of pervasive sexism.  Despite all of our hopes to the contrary, sexism in our society is still alive and well.

I’ve never forgotten that old Henry Kissinger line, “No one will ever win the battle of the sexes; there is too much fraternizing with the enemy.”   It is partially correct.   Most of us men do love women – both individual women and even the female gender taken in the abstract – so the last thing we want to do is wage a “battle” against them.   But clearly, we don’t very much love watching them play basketball, or any other sport for that matter.  And we don’t love watching them get on the stump and exclaim why their vision of governance is better than that of their opponent.  We call such female politicians obnoxious, aggressive, off-putting . . .

I just call it sexism.

Just consider the two de facto leaders of the post-Hillary Clinton Democratic Party.  I’m referring to those two unabashed progressives, Bernie Sanders and Elizabeth Warren.  Bernie can yell all he wants on the stump and we’ll still call him avuncular or even lovable.   Liz?  When she yells, we call her shrill or a scold, or whatever other insult comes to mind for an “uppity” woman.  No, that term uppity doesn’t get used any more, but honestly, it describes precisely the way many people feel about a woman who is righteously indignant and not afraid to explain why. 

If you don’t agree, please explain to me what the analogue is of “avuncular” for a woman.  Or more generally, what flattering adjectives we have for women when they get older.  This isn’t just a problem with our vocabulary.  It’s a problem with our culture.

It is one thing to dis an entire gender when they are young and athletic.  It’s another to dis them when they are mature, wise, and passionate about how to uplift the world, especially when the other gender has done such a robust job of screwing things up.  

We can no longer afford to ignore our biases.   And believe me, the problem isn’t simply the way men think about women, for many women suffer from the same prejudice.  For years, the “fairer sex” was thought of in a supporting role.  That started changing a half-century ago.  Back in the late 60s and 70s, it would have been reasonable to expect that by now, we’d be over this blind spot.  But old prejudices die hard.  It is incumbent on each of us to recognize those prejudices in ourselves and eradicate them from our behavior, at least where they are most important.


You have my permission to ignore the Connecticut women’s basketball team – or for that matter, the undefeated men’s basketball team from Gonzaga.  But you don’t have my permission to ignore female statesmen who have the temerity to raise their voice at horrible injustice, gross inefficiency, or widespread apathy.  Perhaps they’ll sound too “shrill” to be “avuncular,” but that’s fine – take it upon yourself to find some complimentary words that work for mature female leaders.  Just consider what you love about your favorite aunt, or if you have no favorite aunt, use your mother.   How would you describe her?  What positive qualities most come to mind?   And don’t we need more people with those qualities running this country?  To ask the question is to answer it.

Sunday, February 12, 2017

Remembering a Beloved Mentor


I remember the first time I met Dave Fix.   The year was 1987.  I had just taken a new job as a litigator at the Federal Trade Commission, specializing in suing companies involved in investment fraud.   When I saw Dave on the 2nd floor of the FTC building, I honestly thought he was a manual laborer.  He dressed the part.  And he spoke like a blue collar guy.  I had no clue at first that he was an attorney with my office.  But even though I was just a few years out of law school and Dave was one of the most highly decorated professionals in the agency, his title was the same as mine – Staff Attorney.   He never sought out a promotion, nor would he have wanted one.   Dave was one of the three least pretentious people I’ve ever known, the others being my wife and my father. 

It didn’t take long for me to get to know Dave well, or at least as well as you can get to know Dave.  He did, after all, live in his own little world.   An important part of that world was his office on the Constitution Avenue side of the FTC Building.  Dave didn’t spend as much time in the office as the other lawyers on our hall.  After he showed up in the building, which was typically hours after the rest of us arrived (he spent the early morning working on his golf driving range in Virginia), Dave would mostly go from one office to the next, mentoring the young lawyers.  He’d make a few jokes, ask you about your cases, provide just about the best litigation advice you could possibly receive, cough and snort more than a few times (Dave was never in the best of health), and then move on to the next office.  Back then, our Division had two Assistant Directors, but combined, they supervised fewer people than Dave did, despite his lack of a title.  

If you found Dave in his office, he was probably lying down on the couch, perhaps with some court pleading in his hand.  Perhaps not.  The most recognizable objects in the office weren’t his couch, or even his desk, which seemed pretty useless.  I’m referring to the two impressive silver bowls he kept on top of a file cabinet. Why Dave needed a file cabinet I never knew.  It wasn’t like he wrote briefs himself; he simply advised people and edited their writing.   Dave’s bowls commemorated his two Louis Brandeis Awards, the honor that the FTC gives out to a single lawyer each year to recognize achievements in litigation.  Receiving the Brandeis in 1995 was one of the greatest honors I’ve ever received.  Dave, however, used his Brandeis Awards as ashtrays.   He liked to smoke.  And drink.  Probably not a wise course of conduct for an overweight diabetic.  But it suited Dave.

With the possible exception of Donald Trump, nobody could slay you with a nickname better than Dave Fix.  One by one, thanks to Dave, I would come to know certain individuals by a single moniker – a word or a short phrase.  Dave’s nicknames sliced into people like paper cuts; believe me, they were surgical.  You could see from the way he would capture a person’s foibles why he was so good at identifying precisely what was wrong with a fraudulent scheme or precisely what legal theory would work to confront that scheme.  With every other successful attorney, the practice of law is 99 percent perspiration and one percent inspiration.  With Dave, it was the other way around. 

Dave was fiercely loyal.  And he inspired loyalty in return.  I’ll never forget the lunch I had with Dave and two of our colleagues, one of whom was the head of the division, Mike McCarey.  To set the scene, I worked for Mike’s office from 1987 to 1989, and then left for two years while I worked in the field of education.  In 1991, I decided that I wanted to go back to my old job at the FTC, and the lunch I’m referencing was essentially my job interview.  Mike said to me, quite understandably, “_____ [the other colleague at the lunch] says that you weren’t very happy when you worked here before.  Why do you think you’ll be happy now?”   Before I had a chance to answer, Dave turned to me and said, “I just have one question.   Can you promise you’ll work here for nine months?”   “Excuse me?” I said, puzzled by his question.  So Dave asked it again. “Can you promise you’ll work here for nine months?”  “Yes,” I said, not knowing where he was going.   And at that point Dave turned to Mike and practically yelled, “So what the f--- are you doing?  Hire him!”

Dave’s use of the F word in that context was hardly surprising.  He frequently salted his language with earthy words.  He was, in all respects, a regular guy.  He may have lived his adult life in the Washington DC area, but I always associated him with Idaho, where he came from.  Sure, he went to Harvard as an undergrad and Stanford for law school, but there was nothing at all hoity-toity about Dave. 

One of Dave’s most common refrains was that instead of relying on the judgment of an FTC bureaucrat, we should just ask the cleaning crew what they think.   Because Dave always mixed in a few colorful nicknames and other flourishes, these comments always came across as jokes.  The thing is, though, he wasn’t joking.

My wife remembers a story about how she visited me in the office in 1987 and I was wearing a ripped sweater.  “You can’t dress like that at work,” she said, to which I responded, “Why not?  My boss does.”  Sure enough, a few minutes later, Dave came into the office wearing something worse.  I went with the rips, he went with the stains.

I realize that what I’m describing sounds a bit like the Keystone Kops.  And truly, there were times back in those days when I felt like the lunatics were running the asylum.  But let’s put this in perspective. Our Division, the Division of Service Industry Practices, was undeniably the flagship office of the Bureau of Consumer Protection, if not the entire agency, for many years.  And this was in no small part because Dave Fix had a vision about how broadly courts can act whenever a statute confers upon them so-called “equitable powers.”  Specifically, because the FTC Act entitles the Commission to obtain injunctive relief (an equitable remedy) in order to address deceptive trade practices, Dave convinced judges that they were empowered to award ANY equitable relief necessary to redress such deceptive practices. These powers include providing, without prior notice to a defendant, an independent receiver to oversee a business accused of fraud, a temporary freeze of the defendant’s assets, and immediate access for FTC officials to inspect the books and records of a defendant – not to mention restitution to the consumers victimized by the fraudulent scheme. 

As a legal pioneer who waged war against corporate fraud, Dave was big time.    But he was also a big time mentor.  One after another, young lawyers would learn from Dave what it means to put aside the customary B.S. that so often fills the rooms in Washington, D.C. and get to the bottom of every dispute.  He reminded us that while we happen to work as lawyers for a government agency, our jobs were to work for the people, and not for some institution that sits above the people.   Dave was the antithesis of a bureaucrat.   If you couldn’t buy into what he was selling, you needed to have your soul examined.

On Wednesday, February 8, 2017, the FTC Daily sent out an e-mail that began as follows:  “It is with great sadness that we report the recent loss of members of our FTC family:  Dave Fix, a long-serving attorney in the FTC’s Bureau of Consumer Protection who retired a few years ago, passed away over the weekend.  During his decades with the FTC, Dave helped transform the agency’s consumer protection mission.  He was one of the architects of the use of Section 13(b) to combat fraud, and ... he mentored a number of BCP attorneys through the years.  Dave was awarded the agency’s Louis D. Brandeis Award twice for his extraordinary litigation skills.  Dave will be greatly missed by his colleagues in BCP and throughout the FTC.”

Actually, Dave is the type of lawyer who will be missed not only by his own colleagues but even by his opposing counsel.  As indicated above, anyone with a soul loved the guy.  And even though he as much as anyone else taught me what it means to be a true public servant, I will miss his friendship above all.   You see, David didn’t just have a big body and a big brain.  He had one hell of a heart.


Rest in peace, Big Guy.   I look forward to your Irish Wake.  And to continuing to go to the office and behave as non-bureaucratically as possible in your memory.  

Saturday, February 04, 2017

All Lives Really Do Matter


On January 27, 2017, people from all over Red State America came to Washington D.C. to affirm their opposition to abortion rights.  Locally, the event is known as the “Anti-Choice March,” but nationally, it is known as the “March for Life” -- the largest anti-abortion rally in the world.   It is dedicated to the proposition that all human lives matter – the born and the unborn.

I agree: all human lives matter, including our fetuses.   That’s one reason we all owe a debt of gratitude to Planned Parenthood.  In providing critical family planning education to needy women, it has lowered the abortion rate by reducing the unwanted-pregnancy rate.  Now, after eight years of the Obama Administration, the national abortion rate is as low as it has been since Roe v. Wade.   

I disagree with the March for Life participants regarding abortion rights, but I appreciate their desire to affirm the value of all human life.   The pro-life cause is one conservative principle idea that needs to be treated with respect, even by those of us who view reproductive freedom as fundamental.   It’s one thing to affirm a woman’s right to choose; it’s another to completely denigrate the dignity and worth of a human fetus.   That’s a bridge too far for me.

So, allow me to say that I welcome to my city those who come every year on a cold winter’s Day to affirm the dignity and sanctity of all human life.  What I can’t welcome was another message that was sent this past January 27th, ostensibly for the same reason: to affirm the dignity and sanctity of all human life.  I’m referring to the White House’s statement on International Holocaust Remembrance Day. 

It was three simple paragraphs.  The first bemoaned the “depravity and horror” that the Nazis inflicted on its victims.  The second expressed gratitude for those heroes who risked everything to save innocent people.  The final paragraph pledged to defeat the powers of evil, and do so “in the name of the perished.”   There was surely nothing objectionable in what was said.  The problem was what was NOT said.   You see, according to published reports, an earlier draft had added a sentence recognizing in particular the six million Jews who died in the Holocaust, and someone made the decision to remove that statement – and leave not a single reference to Jews.   That decision was later defended by one official  as a way to recognize that the Nazi’s victims included “priests, gypsies, people with mental or physical disabilities, communists, trade unionists, Jehovah's Witnesses, anarchists, Poles and other Slavic peoples, and resistance fighters."  Surely, their lives matter too – not just Jewish lives.  Right?

Yes, of course.   All lives matter.  But there was something about the Holocaust that was uniquely relevant to Jews.  Here are the words of historian Deborah Lipstadt, as published in the Atlantic:  “There were indeed millions of innocent people whom the Nazis killed in many horrific ways, some in the course of the war and some because the Germans perceived them—however deluded their perception—to pose a threat to their rule,” Lipstadt wrote. “They suffered terribly. But that was not the Holocaust. The Holocaust was something entirely different. It was an organized program with the goal of wiping out a specific people....  The point was not, as in occupied countries, to get rid of people because they might mount a resistance to Nazism, but to get rid of Jews because they were Jews.”

And boy, were those Nazis effective in doing just that.  Speaking personally, I come from a family that consists primarily of Holocaust non-survivors, not Holocaust survivors.  My maternal grandmother, for example, had seven siblings.  Yet I can practically fit all of my known blood relatives – including second cousins and their offspring – into the seats of my mini-van.  That is a phenomenon known only to Ashkenazic Jews and orphans.  What’s more, the Holocaust was merely the culmination of centuries of vicious discriminatory measures imposed on Jews throughout Europe, measures that dramatically deprived Jews not only of political and economic power but also of living bodies. 

All lives matter.  But so do all civilizations.  And the Jewish civilization has been repeatedly poisoned, often fatally, by other civilizations.   Holocaust Remembrance Day is the one day a year when we expect the rest of the world to recognize that fact. 

Lest this sound like a partisan post, believe me when I say that ignoring the plight of the Jews is an equal-opportunity pastime.  These days, you see it as much if not more on the left as on the right.   Consider the words of Congressman Keith Ellison, someone with whom I agree far more often than I disagree.  Mr. Ellison might already have been named to head the Democratic National Committee if he had not been taped, in a 2010 gathering, making the following statement to supporters:

“The United States foreign policy in the Middle East is governed by what is good or bad through a country of seven million people....  A region of 350 million all turns on a country of seven million.  Does that make sense?  Is that logic?  Right?  When the Americans who trace their roots back to those 350 million get involved, everything changes.  Can I say that again?”

There are two things about this statement that offend me.  First, he is buying into the trope that everything is controlled by the Jews; clearly, the U.S. Government supports Israel for a host of reasons over and above the interests of the Jewish State or the Jewish people.  ‘Nuff said on that obvious point.  But the second problem with the Congressman’s statement is, to me, that it ignores the plight of the Jews over time.  In pointing to the small number of Jews in Israel – or, for that matter, everywhere else – the Congressman forgot to ask the question, why is the Jewish population so small?  Is it because the Jewish civilization was always so tiny?   Or is it largely the product of the butchery, ghettoization, and anti-Semitic vitriol that has marked our world generally, and Europe in particular, since ancient times? 


Yes, all lives matter.  But sometimes, certain lives in particular need to be nurtured and recognized.   Unborn lives.  Jewish lives.  And yes, black lives.  In my avocational life, I spend a lot of time recognizing that Muslim lives matter too.  Even when you live in a melting pot society, there is a time and place not only for universalism, but also to recognize the unique needs and claims of specific groups of people.  Now, more than ever, we need to appreciate that principle.  

Saturday, January 28, 2017

The Real Voting Scandal



Last week, I offered a tribute to American democracy, which, for good reason, has long been the envy of the world.  While other nations were subjugated by emperors, kings, czars, and fuhrers, we were electing Presidents.  Peacefully, we’ve transitioned from one political party to the next for well over 200 years.  You don’t have to be a historian to be proud of that record.

But there is another side of the ledger.  When it comes to our record of democracy, our current situation isn’t nearly as impressive as our past.  Team America is a lot like a football franchise that loves to talk about the glory days of yesteryear rather than all the losing seasons they’ve more recently experienced.  But fans don’t want to hear about the past; they want to know when and how their team is going to succeed in the future.  When it comes to something as precious as our commitment to democracy, we Americans should be equally demanding.  

Democrats and Republicans these days are debating who really won the Presidential election – the Republicans, who can boast a 74-vote victory in the Electoral College, or the Democrats, who can tout a popular vote margin of 2.9 million.   In fact, however, the actual winner was “Why bother to vote?  I didn’t.”   That attitude won in a landslide.

Hillary didn’t even capture 30 percent of eligible voters.  Neither did Trump.   By contrast, “Screw this” garnered 45 percent.  In 2012, it captured 46 percent.  According to a Pew study, the corresponding numbers in Australia, Belgium, Turkey and Sweden were 9%, 13%, 14%, and 17%.  For some reason, eligible voters in those countries show up at the ballot box.  

A recent Pew study surveyed voting patterns in 35 developed nations.  When it came to voter participation, the United States finished in the bottom ten.  Notably, of the seven countries that scored worse, four of them had been part of the Eastern Block – so they haven’t exactly developed a culture based on free elections.   We scored well below both of our North American neighbors, not to mention nearly every country in Western Europe.  To be sure, we scored better than Switzerland, but maybe that country is so awash in the fruits of international money laundering that its citizens feel too guilty to vote.  What’s our excuse?  

Poor voter participation, my friends, is the most profound scandal surrounding any recent American election.  Not whether illegal aliens or space aliens voted in large numbers, but why nearly half of eligible American voters consistently don’t care enough to vote.   To their credit, our leaders have made it easier over time for people to cast a ballot.  You can do it on Election Day, vote absentee, or head to a polling place that provides for early voting.  Yet still the plurality stays away altogether.  Why?  

The answer surely reflects widespread alienation among our population.  That’s not too surprising given the articles that have come out this week saying that the Dow Jones has finally reached 20,000, and yet half of the country won’t benefit one whit from this development.   Economists might say that there are two groups of Americans – those who have at least a modicum of net worth and those who don’t, and the second group is essentially as large as the first.  But sociologists might ask whether it’s a coincidence that nearly half of Americans don’t vote.   As Dean Wormer might say, “poor, alienated, and apathetic is no way to go through life, son.”  But when half of your population falls into that category, how can a nation boast about having a vibrant democracy?

There are plenty of ways to incentivize more people to vote.   We could make Election Day a national holiday.  We could create tax consequences for not voting.  We could make voting a condition of retaining a driver’s license.    People wouldn’t have to actually vote to get credit for showing up.  They could simply cast a blank ballot if that’s what they preferred.   So there’s no issue of coercion here.

Believe me, if we wanted our poor people to vote, we’d make it happen.  The problem, I suspect, is that many Americans have no interest in increasing the national percentage of voting participation.   Perhaps an argument could be made that voting is a privilege, one that you deserve only if you demonstrate your appreciation of it.  In my view, however, a stronger argument could be made that a vibrant democracy requires a government that is responsive to all its citizens, not merely the most affluent or energized.  Besides, if we give the non-voters some motivation to cast a ballot, there’s a good chance it will stimulate their interest in voting going forward.   

Already, American democracy is stained by the fact that the residents of its capital city, many of whom move to DC out of patriotism and a commitment to social service, aren’t fully represented in the legislative branch of our government.  Clearly, the reason for that failure is that DC residents would surely elect Democratic Party representatives, and Republicans don’t want to see more Democrats in Congress.  I assume that the same factor is at work in terms of why the powers-that-be don’t want to strongly incentivize more people to vote in national elections.   One party has decided that this would hurt its chances of winning elections, and that consideration has trumped all others.    

We hear a lot these days about the need for a progressive movement that will shake things up throughout the country.  May I suggest that the leaders of this movement, first and foremost, should insist on a commitment to American democracy.   It’s time to talk about the scandal of rampant non-participation among eligible voters, how easy it would be to address this problem, and whether we as a nation would like to see this problem confronted.   I’d much rather hear that debate on TV  than discussions about crowd sizes or “alternative facts.”