The Big Picture and the Closeup

No one is in favor of sexual violence, but due process matters too, and right now it tends to be dangerously inadequate. Pre-hearing discovery of evidence is often forbidden. Often the accused cannot confront or cross-examine the accuser. Academic tribunals are generally comprised of teachers and/or students without legal credentials, in a setting where proper application of legal rules is critical.  Because lawyers are generally barred from advocating on behalf of either an accuser or an accused, there may be no properly trained voice in the room when legal questions arise. The Obama administration’s directive on how federally-funded educational institutions generally should handle allegations of sexual harassment or assault exacerbated these problems by prescribing an inadequate standard of proof and mandating pre-hearing treatment of the accused that basically presupposed his guilt. It also specifically approved of denying the accused the right to cross-examine an accuser because it “may be traumatic or intimidating,” never mind that it may also deprive the dishonestly accused of the only path to showing the tribunal that the accuser is lying. While I am not a fan of Betsy DeVos, the current Secretary of Education, I did applaud her decision a year ago to rescind that guidance. At the time, DeVos stated that the Department would in due course issue new regulations. The New York Times has now seen those regulations in draft form, and its early report on them is mostly encouraging.

Unless we are prepared to deny all abusers a second act – and I doubt that we as a society are prepared to do anything so categorical – we are going to have to think about what second acts may look like. These are some of my thoughts.

The assurance we should each have by now that we are not going to convert each other should also be key to our coexistence. If only because of our shared past, I do not want to lose our connection to each other, and I sense that you do not want to lose it either, no matter how angry we make each other.

Are we really at a point where a judge operating within the proper bounds of his discretion is to be removed for doing so? I would argue that it is precisely the fact that the judge was operating within his discretion that made this particular recall appropriate. It is often within the margins of discretion that the most important decisions of a judge fall. And there exist few mechanisms to correct such decisions when they are wrong.

A U.S. Attorney entertaining self-doubt might have considered legal philosopher Ronald Dworkin’s thoughts on civil disobedience published in June 1968, prompted precisely by draft protests: “A prosecutor may properly decide not to press charges … for dozens of … reasons…. One is the obvious reason that [draft protestors] act out of better motives than those who break the law out of greed or a desire to subvert government. Another is the practical reason that our society suffers a loss if it punishes a group that includes—as the group of draft dissenters does—some of its most thoughtful and loyal citizens.”
The Nine were thoughtful and loyal citizens (two were veterans, four were present or former clergy). Knowing that they would probably land in federal prison, they took concrete steps to halt a war machine that needed halting, and to enlist juries in the effort. For this, they deserve our respect.

So there was a clear division of labor; the clients alone would take the risks, exposing themselves to the possible consequences, and Roe, win or lose, would try to protect the clients from those consequences if he could. Many of the clients were passionate about their causes, temperamental and irritable. Yet none of the clients objected that Roe should have flown closer to the flames himself.

So the American reality my family lived out was that money is transmutable into education, and education into money, and that in the normal course of events the locus of that privilege may move back and forth between the one and the other as the times require. Families with education could (and mine did) ride waves and then wait between them. But moving back and forth is tougher for families that can’t obtain good educations. And up to my generation, the family history discussed last time suggests the best educations, the ones available where I and my forbears studied, were, practically speaking, reserved for people with European ancestors. Blacks were thus largely denied whatever advantages such educations might have afforded them in catching either of the big waves that had benefitted my own family.

I was raised to despise racial prejudice, and have taught my children the same. But have I enjoyed a racially-exclusive education? It seems I have. Have I passed this racially-exclusive educational privilege along to my children? Why, yes. The kids are all products of elite private universities, with almost no public schooling among them in their earlier years.

We all want most at Christmas to be cared for and reassured like the children we were when we first came to love the feast. But as grownups we shoulder the task of being Santa Claus, the nurturer rather than the nurtured, a task passed on from generation to generation. And this dark year we need to be Santa in a much larger sense,

So what, then, is your argument? It seems to be that bringing compulsory service back would assure that the middle and upper classes have some skin in the game. You suggest we might not have had those endless wars we’ve had in the all-volunteer era, had the likes of you and me had to send their sons and daughters off to play in that lottery we call war. Well, again, remember Vietnam, Mr. Haberman. There were better-off folks who did not serve, like Donald Trump and (full disclosure) me. But though some deny it, the statistics bear out that the service and the dying did, if somewhat unevenly, involve all classes, and – do you remember this part? – the War still went on and on and on. Nobody could stop it, regardless of the class distribution amongst the warriors, and regardless of the fact that halfway through, the War lost popular support, especially among the better-off classes.