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Principles and Partisanship (concluded)

The National Emergencies Act allows the president, after finding that a “national emergency” exists, to take money already allocated by Congress for another purpose and spend it to meet the national emergency. The act had a laudable and limited purpose. When a national emergency suddenly arises, action might be needed before Congress, which might not even be in session, could act. The president was given authority to address the emergency.

Normally when the president wants to take action that requires money, he must convince Congress to allocate the money. He cannot just take the action without congressional authority. President Eisenhower wanted an interstate highway system in part because he thought it would aid our national defense. These roads required money. Eisenhower had to persuade Congress to authorize the construction. If he had been unable to convince the legislature, he could not have built the roads. A constitutional branch, co-equal to the executive, would have properly exercised its discretion against the highway system.

Congress has considered the problems at our southern border. No emergency has arisen which the legislature has not had time to examine. Congress has exercised its constitutional power and decided how much should be spent on a border wall. Through the national emergency declaration, Trump seeks to disregard or overrule that congressional decision and usurp the constitutional power of the purse given to Congress.

As far as I know, this is an unprecedented use of the national emergency authorization. No president before has sought to use the National Emergencies Act to do what Congress has expressly decided against. (Trump’s action in a broader sense, however, is not unprecedented. In what we call the Iran-Contra affair, Reagan sought to do what Congress had expressly forbidden, and, unlike Trump’s action, tried to do it in secret and without a fig leaf of a law supposedly allowing the president’s actions.)

The defenders of the president say that even if his action is unprecedented, it is authorized by the National Emergencies Act, in which Congress gave him legislative powers. This reading of the National Emergencies Act raises an important constitutional question. The Constitution’s Section 1 of Article I states, “All legislative Powers herein granted shall be vested in a Congress of the United States. . . .” Congress legislates; the president executes. That was the design of the Constitution. Can Congress change that and cede its powers to the president so that the president can both legislate and execute?

Congress, in fact, put unusual provisions into the National Emergencies Act to constrain a president’s power. That law originally said that a presidentially-declared national emergency ceased if “Congress terminates the emergency by concurrent resolution. . . .” That Act put strict time limits on the consideration of an emergency-termination resolution. That proposed resolution had to be reported out of committee within fifteen calendar (not business) days and voted on within three calendar days. If it passed in one House, the other House had to report it out of committee within fifteen calendar days and voted on by the second House within three calendar days. The requirement for a vote meant that Senators could not filibuster the resolution. If the provision passed by the Senate did not match the one passed by the House, the Act required a conference committee report within six calendar days and the Senate and House action on the conference committee report within another six calendar days.

These provisions worked together so that a congressional minority could not block the rescission of a president’s emergency declaration. A minority could not bottle it up in a committee, and Senate or House leadership or a minority could not prevent a vote. If a majority in each body wanted the termination of the declaration, it would be terminated. And because the concurrent resolution did not require the president’s signature to take effect, the president could not veto it. President Trump, however, has vetoed the present congressional rescission of Trump’s “emergency.” If thirty-four percent of only one house does not vote to override the veto, a national emergency stays in place, as this one has because the House did not override the president’s veto. The National Emergencies Act was structured to prevent such minority power. How did that change?

Time to bring in that third branch of government and the Supreme Court’s 1983 decision of Immigration and Naturalization Service v. Chadha. The Immigration and Nationality Act allowed the Attorney General under certain circumstances to suspend deportation of an individual if the deportation would cause “extreme hardship.” Under that Act, however, either house of Congress could veto the AG’s determination and then the deportation would have to occur.

In Chadha, the Supreme Court held this veto unconstitutional. The Court decided that the veto was legislation, and a proposed law must be passed by both Houses and presented to the president for a possible veto. With the Chadha case in mind, Congress in 1985 amended the National Emergencies Act, leaving all the congressional termination provisions intact so a congressional minority still can’t prevent a vote on a termination resolution, but changing “concurrent resolution” in the original law to “joint resolution.” This joint resolution is the equivalent of a law and has to be presented to the president who can veto it. If it is vetoed, as Trump has done, a minority in one house can thwart the majority in both houses. The president will have legislative authority and power over the purse that the Constitution gives to Congress. Can the Constitution be changed in such fashion without an amendment?

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Principles and Partisanship

 

When Congress abandons legislating, power flows to the president, upsetting the separation of powers the founders sought to constitutionalize. Kaiser notes, “The preeminence of presidents had been a widely accepted proposition for half a century, despite the founders’ clear expectation that Congress would be the most influential branch of government.” We now expect that the president will set the agenda, legislative and otherwise, and the executive branch, not Congress, primarily drafts the legislation.

This accretion of presidential power has occurred no matter who occupies the White House, but this shift has also been pushed by a brand of conservativism. These ideologues speak of the “unitary executive.” On one level this is a constitutional truism. Our constitution does vest the executive power in a president, not in a group.  Section 1 of Article II of the Constitution states, “The executive Power shall be vested in a President of the United States of America.” But when these conservatives support the “unitary executive” they promote their theory that presidential power is expansive, perhaps unlimited, when it comes to national security and that Congress cannot interfere with what these conservatives consider to be executive power. This is not the place to explore these concepts and their apparent contradiction with constitutional originalism except to note that the president, who now has powers never dreamed of by the founders of our country, should have even more under the “unitary executive” theory.

Power has also flowed from Congress to the president because Congress has expressly ceded power to the president. An example came after 9/11 when Congress authorized the president to use force against anyone person or entity the president “determines planned, authorized, committed, or aided” the terrorist attacks. The president was granted the power to take warlike actions if the president found certain facts to be true—in this case that a country, organization, or a person was involved in 9/11. Congress placed no restriction on this presidential factfinding and provided for no review of the decision. Congress washed its hands of determining who or what is our enemy and left it to the president to tell us who we will try to kill and subvert. Instead of checks and balances, instead of separation of powers, Congress decided to honor Ricky Nelson: “I will follow you/Follow you wherever you may go. . . .”

We see a similar pattern in one of the significant present controversies—the setting of tariffs. Tariffs have been a recurrent issue in this country’s history, but these were congressional battles because the Constitution gives Congress the authority, and no other body, the power to set tariffs. Section 8 of Article I states, “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises. . . .”

However, today we have the president unilaterally determining the existence and level of tariffs. This is because Congress passed a law that grants the president tariff-setting power when it is necessary for “national security.” Congress neither told the president how to determine when the national security was at stake nor set up a review mechanism for that determination. The president apparently was granted total discretion. Congress may have assumed that a president would only exercise this power in good faith, but it did nothing to insure good faith. Instead, simply by invoking national security, the president can take over the legislative tariff authority. If, as apparently was determined by the president, Canadian pine boards and two by fours are a national security concern, then anything that we might levy a tariff on must be a national security issue. Congress may have thought that it made a limited grant of power to the president by including the national security limitation, but in fact, the way President Trump has used the authority, Congress has ceded its legislative power over tariffs to the president. In essence, Congress amended the Constitution with the act.

The Constitution gives Congress the power of the purse. Section 9 of Article I states, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . .” The border wall dispute raises the issue whether Congress has ceded this fundamental power to the president, too.

(concluded April 1)

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Principles and Partisanship (continued)

Following Ronald Reagan’s footsteps, Newt Gingrich also did much damage to an effective government. The House changed fundamentally after the 1994 election when Gingrich became Speaker. He believed in and practiced all-out political warfare. While he demonized the Democratic party as much as possible, his important battles were often against Republicans. Gingrich put a premium on party loyalty and purity as he and his cohort defined it. A Republican who cooperated with Democrats, who even socialized with them, was an anathema to be driven from the party. A compromise with the Democrats, even if it might advance important legislation, was to be prevented or punished as consorting with the devil. Coalitions across party lines increasingly became an act of tremendous political courage.

Newt Gingrich not only increased partisan rhetoric and imposed strict party discipline, he, in effect, abolished what had always been an important congressional device, the conference committee. Seldom do the House and Senate pass precisely the same version of a bill. If they don’t, those differences need to be ironed out and the uniform bills returned for a vote in each house. The conference committee served that function for two hundred years, but the traditional conference committee was composed of members of both parties from each house. Gingrich was not going to have that because it gave minority Democrats, whom he had demonized to get a Republican majority, a role in the process. Instead, Gingrich insisted that the Senate negotiate differences in any bills not in a conference committee but with him and the House leadership. And in the tit-for-tat world of the modern Congress, when Democrats regained control of Congress, they continued Gingrich’s practices that threw out the conference-committee tradition. Now only a few bills that become law are vetted in a conference committee.

Thee disappearance of conference committees means more party discipline, less outreach across the aisle, and more partisanship. If Senators or Representatives no longer negotiate with members of the other party but only with the leadership of their own party, members of Congress become more and more trained to follow what the leadership wants. Political independence wanes. The legislation that is enacted becomes more political and less the product of thoughtfulness and expertise.

Few in Congress today leave their imprint on any important legislation. Their chief goal is to get reelected, and they have been taught by political consultants that substantive achievements are not the path to another term. Think back to the last congressional election in your state and district. How often did incumbents tout legislative successes? If anything, the connection to important legislation can often be detrimental, for the passage of a bill almost always requires compromise. In safe districts and states, the main obstacle to a return to Washington is a primary challenge where a compromised ideological purity can be a detriment. It’s better to remain “pure” than have produced imperfect but still valuable legislation.

As a result of these many reasons and trends, Kaiser notes that in today’s Congress, “Legislating is no longer the principal preoccupation of our legislators. Most commonly, it is politics by sound bite.” And snippets for the media seldom require any deep understanding of the issues. There is little incentive to do the hard work of mastering substance. Congress has become dominated by people with political skills but limited expertise, and this makes thoughtful legislation unlikely. Conference committees used to bring some expertise to bear on the final legislation. Conference committee members participated in hearings, and their staffs developed knowledge about the issues. Conference committee negotiations did have a concern with the legislation’s substance. Now, however, the negotiations are with the leaders of the Senate and House, and they and their staffs have not developed expertise about the substance of the proposed law. Instead, the overriding goal of the leaders of the Senate and House is to keep their party’s majority. They will be primarily care about the political impact of the legislation. When the leaders supplant conference committees, the quality of legislation suffers.

(concluded March 29)

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Principles and Partisanship

Ronald Reagan also changed the Republican party by proclaiming that government was the enemy. Following Reagan, Republicans did not promise to govern more efficiently or more wisely than Democrats. Instead they denounced government as the problem and promised to oppose government. When the GOP was primarily a party of big business, Republicans may have supported measures to improve capital markets or certain sorts of infrastructure spending that could help businesses. At one time, they might have been concerned about climate change because of the harm it could do to the economy. But no longer. Government is the enemy except, perhaps, for defense spending and building a border wall. It is bad or evil if it accomplishes anything else. And what better way to lessen government than by reducing taxes, especially on those who support me, the rich and the corporations. If you proclaim government is the enemy, then creating a dysfunctional Congress is a godsend.

It followed, then, if lack of government and dysfunctionality are desirble, Republicans increasingly used cloture. Cloture is the procedure that requires sixty votes for a Senate action. It was once the method of ending a filibuster. Even though the Senate no longer has those throat-draining, sleep-depriving filibusters of yore, the threat of a filibuster can still require cloture, or a three-fifths vote, for the Senate to move on. In 1970, there were fifteen cloture motions. In the 1980s, for a two-year Congress, the Senate never had more than eighty cloture motions, but when the Democrats gained the Senate majority after the 2006 elections, the Republicans seeking to block the majority filed 139 and 137 cloture motions in the 2007-08 and 2009-10 Congresses. Mitch McConnell, the Republican Senate leader, had adopted the threat of a filibuster as a basic tactic.

By preventing the majority from acting, cloture conforms to the idea that government is the enemy, but it also fits the new conservatism in another way. Traditional conservatives pledged to support traditional values and practices. The new conservative Senate Republicans led by McConnell changed that. Traditionally, cloture was rare. Under McConnell, those Senatorial values were abandoned to the greater partisan good of denying Democrats the ability to act. Tradition be damned.

McConnell’s famous statement that his priority was to make sure that Barack Obama was not reelected elevates partisanship over country.  McConnell was not interested in whether an Obama proposal was good for the country, only in denying Obama victories that might get that president reelected.  Something similar was at work with the Dodd-Frank act, Kaiser indicates. Connecticut Senator Christopher Dodd, who was vulnerable to electoral defeat the following November, decided not to seek reelection. Kaiser concludes that Dodd’s decision greatly aided passage of the act that sought to prevent future 2008-like financial crises. McConnell did not do everything within his power to defeat the act. However, Kaiser maintains that if Dodd had sought to return to the Senate, McConnell would have spared no effort to defeat the bill. He would have wanted to deny Dodd a victory that Dodd could have touted in his reelection campaign. Partisanship before the good of the country.

The Dodd-Frank history also shows that partisanship came before honest debate. Republicans opposing the bill simply made up stuff about what was in the proposed legislation. It didn’t matter if what they said was true as long as it sounded like it was true to partisans. Distorting the truth kills serious discussion, for, Kaiser points out, “Without an agreed set of facts, meaningful debate is impossible.” The make-stuff-up crowd has only increased since then. It hardly matters if it is demonstrated a conservative’s facts are fantasy. (We are not just talking about the president here. The fact-checking sites have found that conservatives make “misstatements” more frequently than non-conservatives.) The fantastical just keeps coming. What Christopher Dodd found out a decade ago has even wider application today. He tried to shame Mitch McConnell about his indifference to the truth. Kaiser wryly remarks that shaming McConnell was “not an easy task.”

(continued March 27)

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Principles and Partisanship

The congressional vote to rescind the president’s declaration of a national emergency at the southern border fascinates. It lines up partisanship against principle and will probably indicate how little principles matter. Although many Republicans claim constitutional ideals that should lead them to vote against the declaration, few will.

On March 1, 2019, I posted an essay about the 1977 controversy over the Panama Canal Treaties. Proponent of the treaties thought them desirable because they gave America the right to ensure the canal’s neutrality while removing a flashpoint for much of Latin America, and Panama in particular, by giving Panama control over the canal.  The treaty advocates maintained that the treaties would increase the security of the canal by helping to remove the threat of guerrilla attacks, which were almost impossible to defend against.

While prominent conservatives, including Henry Kissinger and William Buckley, backed the treaties, other conservatives in near-hysterical terms attacked ratification.  The treaties, they argued, were a surrender of American sovereignty, and furthermore, the military leader of Panama was pro-Communist.  Communists would control the canal and Panama, and the subsequent harm to the US would be incalculable. The anti-treaties conservatives made the vote on the Panama Canal a litmus test for a new conservatism. Senators supporting adoption of the treaties drew the ire of a newly mobilized conservative mass. Some Republican Senators, however, did recognize that the treaties were good for this country and voted to ratify. These principled politicians were not rewarded with profile in courage badges. Instead, almost all those Republicans voting yes paid a price imposed on them by the booboosie conservatives. On the other hand, history has shown that those who opposed the treaties were not only wrong but often quite stupid in their opposition. Even so, the opponents of the treaty often benefited from their opposition.

Although the actual controversy over the Panama Canal Treaties may be largely forgotten (which is not surprising since many in Congress show the most superficial knowledge of our history), the political consequences of the treaties battle have been absorbed into the conservative DNA. Don’t vote your principles if that goes against what the right-wing rabble wants. You may lose your office as the conservatives whip up conservative opposition to you.

Even back in 1977, only a few conservatives could bring themselves to vote for the treaties, either because they were not bright enough to understand it was the right choice or they felt more partisan than principled. Since then Congress has become even more partisan and elected Republican conservatives even less principled so the needed Republican votes against the “national emergency” are not likely to be there. (This is not to suggest that all the Democratic votes against the national emergency are principled. There are many reasons for a vote against the president’s declaration: there is no emergency at the southern border; there is an emergency, but a border wall does not meaningfully address it; the president’s declaration contravenes our constitutional separation of powers. And, of course, partisanship.)

The changed nature of Congress was driven home to me by reading Act of Congress: How America’s Essential Institution Works, and How It Doesn’t by Robert G. Kaiser, published in 2013. The book chronicles the passage of the Dodd-Frank act. In doing so, Kaiser explains how Congress starting in the last third of the twentieth century became increasingly partisan.

Perhaps surprisingly, part of the reason for the partisanship is social. No longer do congresspeople live in Washington. At one time, it was common for Senators and Representatives to move to Washington and raise their families there. That led to socializing across party lines. The demonization of opponents was less likely if the politicians frequently shared bourbon, veal cutlets, or a deck of cards together. But representatives now seldom get to know each other. Instead, conservatives increasingly made “Washington” an epithet. Anyone who spent excessive time there was suspect. Then Congressional rules increased reimbursements for travel to home districts. The Washington work week is now generally three, and at most four, days, and representatives go back “home” nearly every week. With lesser contact across party lines, there was a diminished need for politeness.

The demonization of political opponents also increased as safe seats multiplied. Gerrymandering started in the early 1800s, but it changed in 1982 when California drew House districts across the state to increase Democratic representation. Republicans took the hint and became even more proficient at creating safe seats for their party. Kaiser reports that by 2000, 300 of the 435 House seats were secure, and that number has increased since then. Representatives who do not have to seek votes across party lines or even from the center can indulge their political ideology and demonizing rhetoric without fear of retribution.

The cost of elections also increased and fundraising by politicians is now constant. This not only means less time for legislating, it has also led to an era of permanent campaigning. At one time representatives between elections concentrated on the business of governing. They sought respect from their colleagues because this standing made them more effective legislators. Now, always in campaign mode, our representatives are not as concerned with legislative accomplishments as with media attention, which is often garnered with extreme partisanship. We all, apparently, love a good fight and colorful epithets.

(continued March 25)

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Whither Hate?

(Guest post by the spouse.)

In preparation for my upcoming trip to Spain, I am reading C.J. Sansom’s Winter in Madrid, a spy novel set in Franco’s Spain during WWII. Coming upon many references to the Spanish Civil War, I have Hugh Thomas’s massive The Spanish Civil War history holding down the seat next to me to fill me in on the characters and organizations that produced the civil war.* The ever-present fear of characters in Winter in Madrid is that Franco will join Hitler in the war against England. The goal of the espionage community is to make certain that doesn’t happen and to be prepared if it does. And this has set my mind spinning.

My surprise is how similar Franco’s dictatorship is to Hitler’s. “Kill the Jewish Bolsheviks and the English fags who support them,” yell Franco’s Falangists as they try to drive Franco into a German/Italian alliance. I shouldn’t be surprised; but I am. And it makes me think about this week’s massacre of 49 Moslem worshipers in New Zealand, the slaughter of 11 Jewish congregants in Pittsburgh, and the murder of 9 black parishioners as they held a peaceful prayer meeting in Charleston.

While the prevalence of gun-related violence in the United States is a serious issue that should be addressed, my query today: “What is it about human beings that we require an enemy that is ‘other’?” And why is it that we don’t simply need to taunt or bait our enemy; we need to annihilate them. And why do we flock to leaders who allow – nay, nurture – these tendencies in the human psyche?

This is, of course, a worldwide – human – phenomenon. Why must Tutsis terrorize Hutus (and vice versa) in Rwanda?  Why do Huers slaughter Dinkas (and vice versa) in Sudan? And what about the countless Afghans who have been blown to bits by the Taliban in the past few months? The Sunnis who slaughtered Shia (and vice versa) in the (most recent) Iraqi civil war? The Yemenis who are being starved to death by Saudi Arabia? Are these simply power struggles for control of “local government”? No; these are hate crimes. But why?

It’s a naïve question, I know, because we all know that the “the world is mean and man uncouth.”* But I wonder if leaders like Franco really believe in the rhetoric of anti-semitism and anti-communism or if they just use it to play to the basest instincts of their countrymen. Ridding the world of these base instincts is, unfortunately, more difficult even than stemming global warming. It’s too late; it’s baked into the human soul.

I admire those who — with hope in their hearts that good can overcome evil — condemn these acts horror.  I condemn them, too, but I am losing that hope.

——————–

* With plaudits to Thomas’s masterful scholarship, the book gives one more information than one really needs to know!

** From The Threepenny Opera, Berthold Brecht.

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The Gracious Chefs (concluded)

In our early days in New York City, our exploration of cuisines in restaurants was largely limited to places like Alfredo’s and middle eastern places because that was all we could afford. The most famous eating places in New York, which generally had French food, were too expensive for us. And then we learned that many of these outstanding, beyond-our-means places had weekday prix fixe lunches, which, while not cheap, we could afford once in a great while.

A few times a year we would go to one. The spouse and I would work in the morning but take off the afternoon and meet at some well-regarded restaurant for a late lunch. After that we might head off to a gallery or museum. We considered it a mini-mini-vacation.

This once-in-a-while lunching at the top restaurants finally led us to Lutèce, then considered by many to be New York’s and, therefore the country’s, best restaurant. Located in an eastside townhouse, we were seated in a second-floor dining room where women with expensive pearls and men in expensive suits and, presumably, expense accounts sat.  I don’t remember all we ate, but we thought it was marvelous and as the dining room emptied, we talked over the exceptional dishes. And then we saw the man with the tied apron and the toque—the Alsatian-born chef-owner, and legend, André Soltner, considered to one the most important chefs in the world.

We knew that his peers held him in awe. This regard comes across from Gabrielle Hamilton, one of New York City’s most outstanding chefs with one of the City’s best restaurants, Prune. In her book, Blood, Bones, & Butter: The Inadvertent Education of a Reluctant Chef she tells of the time her sister, an editor at a cooking magazine, cooked omelet’s with Soltner. Just his method of cracking open eggs was noteworthy to other professionals. (I can’t recommend Hamilton’s book too much and not just to foodies. The elegantly-written memoir is fascinating on many levels. On the other hand, if you don’t know her restaurant, I won’t recommend it to you. It is already too hard to get reservations there.)

At our Lutèce lunch, after Soltner emerged from the kitchen, he exchanged a few words with one or two of the remaining patrons, who, by the way he talked to them, I assumed were regulars, but then he headed straight for us. He said that a waiter had told him in the kitchen how much we had enjoyed lunch, and especially a salmon dish, which the spouse had said to me might have been the best fish she had ever eaten. Soltner asked, “Would you like to know how to make it?” We mutely nodded. He pulled out a chair, sat down, and proceeded step by followable step to explain how he had made the dish. (The secret was bacon fat.) We thanked him. He got up and smiled and concluded, “I am so glad that you enjoyed it.” He walked back to the kitchen. We recognized how kind and gracious this was. It was clear that we were not regulars, that we might not ever even be back again, but sharing the recipe made us feel welcome and as if we belonged. And in fact, the spouse did a creditable job of recreating the salmon dish at a number of dinner parties.

André Soltner. And Alfredo Viazzi. Fame, running a wonderful organization, in this case a kitchen, and natural graciousness. They can all go together.

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The Gracious Chefs

Travel supposedly expands horizons, but sometimes I have traveled only a few miles from home for expansive, new experiences. A generation ago, the Trattoria da Alfredo, in a storefront space on Eighth Avenue and Twelfth Street in New York City’s Greenwich Village, opened worlds for the spouse and me. Until then, Italian food was only a pizza-shaped object and spaghetti covered in bottled Ragu containing browned ground meat and topped with something that Kraft labeled “parmesan.” Alfredo’s gave us our first taste of fresh pasta in innovative, but simple, sauces. It all tasted ethereal.

The restaurant did not have a set menu. Instead, each time we went, we found a choice of six or eight pasta dishes and perhaps two meat ones. They were all reasonably priced, which means that in our straitened circumstances back then, we could just afford them, but adding to the attractiveness of the place to us, it did not have a liquor license. It was BYOB (without a corkage fee!), and so we would bring a bottle of wine from our cache of inexpensive, yet still drinkable to our not-yet-tested palates, wine. All in all, this made for a wonderful dining experience.

The pasta dishes were unlike anything we had experienced before because this was fresh pasta. The sizes and shapes were often unknown to us, but, of course, the texture was also different from our boxed Ronzoni. At Alfredo’s we learned that the sauce did not just have to cling or drip from the pasta but that the pasta could absorb the sauce—a new taste experience. We also learned that meat dishes could be delicious even though simply prepared, as they were at this trattoria. Less was often tastier than complicated.

One night after the dinner rush and we were almost ready to go home, the chef-owner Alfredo Viazzi came into the dining room. I am sure that he must have talked to other patrons, but I know that he talked to us. We learned that he had come to New York City from Savona, Italy, about fifteen years earlier. Savona, he told us, was in the northwest corner of Italy on the sea. We effusively praised the food and his restaurant. I finally asked if he made the pasta. To my surprise, he said that he generally bought it at Raffetto’s. I assumed that was some restaurant supplier not available to the public, but he explained that it was a fresh pasta store open to the public just a few blocks away.

Fresh pasta was not something easily obtainedd in those days. (Of course, it is not as easy today as some markets try to pretend, for often what is passed off as fresh pasta in the refrigerator cases is hardly that.) Sharing his source was an act of graciousness on Alfredo’s part. He did not have to do that, for as far as he knew, now knowing the sources of excellent fresh pasta, we might never come back.

I did start going to Raffetto’s. It was always amazing to watch their medieval-seeming pasta cutting machine as some sort of guillotine cut large sheets of pasta dough into the desired width. Soon, their black pepper linguine became a favorite and a staple of many of our dinner parties. Raffetto’s is still there. It is still marvelous.

When I think of Trattoria da Alfredo, I think of my introduction to Northern Italian cuisine, of a line from that little, innovative restaurant to the marvelous cookbooks of Marcella Hazen, and to trips to Italy and meals eaten in Venice and Bergamo and Florence and elsewhere. But when I think of Alfredo Viazzi, I also think of his graciousness and charm. It reminds me of the graciousness and charm of another, even more well-known, chef.

(concluded March 18)

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Snippets

In The Real Cool Killers by Chester Himes, published in 1959, the euphemism “mother-rapers” appears frequently. Is that less offensive than the phrase it was replacing?

 

I was not much surprised that the thirtyish woman on the subway was carrying a pink purse that matched her pink sneakers. I was a bit more surprised that they both matched the pink surgical mask she was wearing. I thought, however, that the mask should have had the Hello Kitty symbol on it.

 

          Were these words meant to be comforting? Before the medical procedure, the anesthesiologist came to me and explained what he was planning to do in the operating room (although he did not tell me how the insertion of various needles in my wrists was going to make me wince.) He told me about various risks of the anesthetics, something I had heard before from other procedures. He left, but before I was taken to the operating room, he came back with a worried look. “I just saw the results of your stress test. It indicates that you will have an increased risk of a heart attack from the sedatives we will give you.” Then came the words meant to be reassuring, “But what better place to have a heart attack than in the OR?”

 

“Since the world began has any man ever been able to know what would happen tomorrow?” Paul Bowles, The Spider’s House.

 

I was given a booklet when I first went to the doctor that described the procedure and aftercare. It said that after discharge: “Avoid sexual activity until your follow-up appointment with your cardiologist.” I thought, “Even if you don’t find your heart doctor overly attractive?”

 

“Chekhov says that it is in the beginnings and the endings of stories that we are most tempted to lie.” Wallace Stegner, Crossing to Safety.

 

I had forgotten the German-Turkish-American server’s name. She feigned, I think, that she was upset. I said, referring to the Mexican-American server/busboy standing next to her, “I have known him longer, and I forget his name.” She replied, “We call him Doughnut.” I looked at him and said, “Why is that?” He just smiled. She explained. “He went to a house of pleasure, and instead of giving out dollar bills, he handed out doughnuts.” The Colombian-American bartender clarified that the establishment was a strip club not too far away. The Mexican-American server/busboy had bought the doughnuts at a fancy neighborhood shop, and he had given them out to the strippers. He would not tell me what kind the doughnuts were—I thought that they should have been Boston cream–but his English is limited, and he might not have understood the question. A few minutes later, however, he looked at me with his always sweet smile and said, “Now I am a VIP.”

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Arrested and Brought to Court (concluded)

After the rights were waived and counsel appointed at arraignment, there might be something that was not legally a part of the arraignment. This was known as plea bargaining. It would not take place if the charges were serious. The New York Criminal Court, where these arraignments took place, only had jurisdiction over misdemeanors and preliminary matters on felonies. A plea of guilty could not be entered to a felony and so plea bargaining on serious cases was down the road. It was different for misdemeanors where the maximum penalty was no more than a year in jail.

Court administrators pressure judges to “dispose” of cases quickly. In practice this meant to get pleas of guilty or a dismissal that would clear cases from the docket. If the charges were of a kind that might be plea bargained, the judge would call the assistant district attorney and me to the bench where we would have a conversation that was private and not on the record.

The prosecutor’s consent was necessary for any guilty plea to less than all the charges. Thus, the assistant district attorney would indicate to what charge(s) he would allow a guilty plea with the understanding that he would dismiss the remaining one. He might also indicate what he thought the punishment should be. I would indicate whether this was sensible to me and often make a counter offer, not generally on the charges but to the sentence. If I had learned plausible reasons from my interviews why the matter might not be as serious as depicted in the charging papers, the judge would ask the arresting officer or the complaining witness something to weigh in.

Finally, the judge would indicate what sentence he would impose if the defendant did plead guilty to the charges the prosecutor offered. I would then go back to my client standing at a table a few feet away from the bench. I would tell the client in a confidential tone what had happened at the bench. The defendant then had a few moments, and only a few moments, to decide whether he wanted to take that offered plea. If he did want to take what had been offered, I indicated that to the court, and his plea was taken. This required an “allocution.” The defendant had to be asked on the record whether he wanted to plead guilty. He had to answer “Yes.” He was then asked whether he understood that he was giving up various constitutional rights, including the right to a trial, by pleading guilty. He had to answer “Yes.” He would then be asked whether he had been forced or coerced to plead guilty or whether he had been offered any inducement to plead guilty other than the offered plea bargain. He would have to answer “No.” Such an allocution took about a minute, and the defendant would then be led back behind the courtroom. If the plea included immediate release, some paperwork had to be filled out and then he could go. If he had people in court for him, I would go to them and tell them what had happened and where they could go to meet the defendant.

There was an advantage if I had worked with the assistant district attorney and the judge before. If so, I often had a good idea of what a plea offer would be before it was made, and I would have discussed that possibility with the client back in the holding cell before the arraignment so that he could think about an offer before having to make a snap decision in court.

The limited time that an accused had for the important decision of whether to plead guilty bothered me. I was also often disturbed when I was representing multiple defendants and a plea was offered. The prosecutor and judge were dealing partly to get the case over with, and that would require a disposition from all the defendants. If three out of four were willing to plead guilty but not the fourth, the case continued and would take basically the same amount of time in the future as if none had pleaded guilty. Thus, the deal was for all or for none. This presented an ethical dilemma. If the case went on, each defendant would have a separate attorney, but at the arraignment I was representing them all, and this presented a conflict. I was simultaneously the attorney for someone who wanted to plead guilty but could only do so if all pleaded guilty and a person who did not want to plead guilty. A way out of this ethical conflict was to have the case continue so that separate attorneys could be appointed, but that conflicted with the court’s desire to get dispositions at arraignments and the desire of those defendants who wanted the case over immediately. The court never cared about the ethical conflict, and I never found a good way to handle it.

While many cases were plea bargained, defendants often rejected the offered deal. Many other cases were not plea bargained because the charges were too serious to be resolved by a misdemeanor plea. Such cases would live beyond that initial court appearance. Then the proceedings returned to another formal part of the arraignment—the setting of bail, but I will leave that for another day.