A Day for Presidents

Ulysses S. Grant liked to say that he knew two songs. One was “Yankee Doodle” and the other was not.

John Ganz in When the Clock Broke: Con Men, Conspiracists, and How America Cracked Up in the Early 1990s (2024) says that George H.W. “Bush was the representative of a class bred to govern, not to lead.”

Grover Cleveland vetoed more bills in his first term than all previous presidents combined. (Many, however, were private pension bills.)Troy Senik, A Man of Iron: The Turbulent Life and Improbable Presidency of Grover Cleveland.

Lincoln said about General Phil Sheridan, who had a distinctive body, that he was a “chunky little chap, with a long body, short legs, not enough neck to hang him, and such long arms that if his ankles itch, he can scratch them without stooping.”Scott W. Berg, The Burning of the World: The Great Chicago Fire and the War for a City’s Soul (2023).

Warren Harding, when President, privately said that his vote for World War I was a mistake. Adam Hochschild, American Midnight: The Great War, A Violent Peace, and Democracy’s Forgotten Crisis (2022).

Nicole Hemmer in Partisans: The Conservative Revolutionaries Who Remade American Politics in the 1990s summarizes President Ronald Reagan as being fueled by anticommunism, which gave him “a preference for more-open borders and higher immigration levels, for fewer tariffs and a stingier social net. Anticommunism mattered more to him than democracy or small government. He wanted a sharp increase in military spending, a more aggressive posture toward the Soviet Union, and more extensive aid to right-wing illiberal regimes in place in South and Central America and Southern Africa.”

Hemmer also reports that Reagan’s 1980 presidential race was the first with a partisan gender gap.

Jill Lepore in These Truths: A History of the United States (2018) reminded me that Reagan, in response to Black Panthers, said there is no reason why anyone should carry a loaded gun on the streets.

Joshua L. Powell writes in Inside the NRA: A Tell-All Account of Corruption, Greed, and Paranoia within the Most Powerful Political Group in America (2020) that gun owners voted for George W. Bush by 25 points over Al Gore.

Al Gore is younger than Donald Trump.

Ted Widmer in Lincoln on the Verge: Thirteen Days to Washington (2020) refers to a historian who said that to discuss Millard Fillmore was to overrate him.

One modern president who was religious believed strongly in the separation of church and state. Jonathan Alter writes in His Very Best: Jimmy Carter, A Life (2020) that when he was the Georgia governor, Carter canceled a weekly worship service for government employees because it violated separation of church and state. President Carter did not allow religious sermons in the White House because of separation of church and state.

Jill Lepore states in These Truths: A History of the United States (2018) that Lyndon Johnson had broad support among evangelicals in 1964.

Something that would not happen today: Doris Kearns Goodwin reports in An Unfinished Love Story: A Personal History of the 1960s that she thought that she would lose her position as a White House Fellow in 1967 because she had co-authored a piece in The New Republic titled “How to Remove LBJ in 1968.”

Jonathan Alter maintains that Jimmy Carter had a photographic memory for names, which reminded me of a story a former colleague told me. Ed grew up in a small Arkansas town where his parents had a modest, but successful, business. When Bill Clinton ran for state attorney general, Ed’s parents attended a fundraiser in their hometown for the candidate. Eight years later, when Clinton was out of office between his non-consecutive gubernatorial terms, Ed’s parents were in Washington, D.C. They spotted Clinton on the opposite sidewalk. They debated whether they should go up to him because of their one meeting. Before they had made a decision, Clinton strode across the Georgetown street, stuck out his hand, and greeted Ed’s parents by their first and last names.

This is not the first time we have had an administration with strange opinions about vaccinations. Jill Lepore in These Truths: A History of the United States (2018) states that Dwight Eisenhower and his Health Secretary said that the free distribution of the polio vaccine was socialized medicine.

According to Timothy Snyder in The Road to Unfreedom: Russia, Europe, America (2018), Trump in 2016 did best in counties with a public health crisis, especially where the suicide rate and opioid use was high.

First Sentences

“Clarence Darrow, the famous labor lawyer from Chicago, had stood tall in the public’s eye for almost two decades, and even those who didn’t much like him respected his vigorous defense of what seemed to be hopeless cases.” Brenda Wineapple, Keeping the Faith: God, Democracy, and the Trial that Riveted a Nation.

“Wise guests wake early at the Royal Karnak Palace Hotel.” Christopher Bollen, Havoc.

“Picture the biggest tree you’ve ever seen, laid on its side and sliced lengthways into boards no thicker than expensive steaks.” Callum Robinson, Ingrained: The Making of a Craftsman.

“A wise man once said that next to losing its mother, there is nothing more healthy for a child than to lose its father.”  Halldór Laxness, The Fish Can Sing.

“History, as the cliché goes, is written by the winners, but this is a history of the losers: candidates who lost their elections, movements that bubbled up and fizzled out, protests that exploded and dissipated, writers who toiled at the margins of American life, figures who became briefly famous or infamous and then were forgotten.” John Ganz, When the Clock Broke: Con Men, Conspiracists, and How America Cracked Up in the Early 1990s.

“In the next town over, a man had killed his family.” Paul Murray, The Bee Sting.

“As ice gathered several inches thick on the Hudson River and the mercury plummeted below freezing, Hortense Odlum stepped from her chauffeured car onto the Fifth Avenue sidewalk.” Julie Satow, When Women Ran Fifth Avenue: Glamour and Power at the Dawn of American Fashion.

“In a moment of panic, we decided to look for a home.” Ayşegül Savaş, The Anthropologists.

“The First Federal Congress was the most momentous in American history.” Fergus M. Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government.

“Terry Tice liked killing people.” John Banville, April in Spain.

“Comrades, In the summer of 2022, I returned to Howard University to teach writing.” Ta-Nehisi Coates, The Message.

“Rotating about the earth in their spacecraft they are so together, and so alone, that their thoughts, their internal mythologies, at times convene.” Samantha Harvey, Orbital.

“He stands offstage unseen before seen by millions—oh, sweet polarities!—consolidating adrenaline into twinkling brio.” Bill Zehme with Mike Thomas, Carson The Magnificent.

Indicted for an Abortion Pill

“If men could get pregnant, abortion would be a sacrament.” Florynce Kennedy.

“I’ve noticed that everybody that is for abortion has already been born.” Ronald Regan.

Dr. Margaret Carpenter of New Paltz, New York, was indicted by a Louisiana state grand jury for prescribing and providing mifepristone, the so-called abortion pill, to a pregnant girl in Louisiana. Two-thirds of this country’s abortions involve the use of mifepristone. The abortion pill is legal in New York; it is illegal in Louisiana. (Louisiana bans all abortions at whatever stage of pregnancy and has no exceptions, even for rape or incest.) The Louisiana crime carries a sentence of imprisonment of up to five years.

The mother of the pregnant Louisiana girl ordered the abortion pill online. The mother also was indicted, and news reports indicate that she was taken into custody and released on bail.

Carpenter’s indictment appears to be the first criminal case of an out-of-state provider of abortion pills brought by a state that bans them. I have been asked by friends to answer some basic questions about the indictment, and here are my answers:

Can the girl who took the abortion pills be charged? Answer: No. The Louisiana law specifically exempts the pregnant woman from criminal charges.

Dr. Carpenter took no actions within the borders of Louisiana that could be considered illegal. Can she still be criminally charged? Answer: Yes. If I am in New York and hire someone to kill my business partner in New Jersey, and the partner is killed as a result, I have committed a murder for which New Jersey can prosecute me.

But you might say, that is different. Murder is a crime in both New York and New Jersey. The abortion pill may be illegal in Louisiana, but it is not in New York. The doctor did nothing that was illegal where she was. Can Louisiana still make it a crime to ship the abortion pill, legal in New York, to Louisiana? Answer: Yes. Imagine that New York makes an automatic firearm illegal, while it is legal to sell and possess it in North Carolina. A gun shop owner, knowing that the firearm is illegal in New York, ships it to New Paltz. He can be charged with a crime in New York.

Even if Dr. Carpenter can be charged in Louisiana for shipping a drug there that is legal in New York, will she be extradited from New York to stand trial in Louisiana? Answer: No. Extradition is the process by which one state demands the return of a criminally accused fugitive who is in another state. This is generally a routine process that is authorized by the federal constitution. The governor of the demanding state sends a signed warrant to the governor of the state where the fugitive is present. The fugitive is detained, and the demanding state sends law enforcement to transport the fugitive back to the host state to face the music.

Extradition, however, applies to “fugitives” and Carpenter is not one. The term means someone who had been present in the demanding state, (allegedly) had committed crimes there, and has now left that state. If you were not in that state when the supposed crime was committed, you are not a fugitive from that state. New York follows the normal extradition rule: If extradition is asked for someone who was not in the demanding state at the time of the crime, that person will be extradited only if the alleged conduct is criminal in both states. That, of course, is not the situation for the doctor. Her actions do not constitute a crime in New York, and she should not be extradited under New York law.

But there is another reason she won’t be extradited. New York has enacted a Telemedicine Health Shield Law. It protects New York health care providers for activities precisely of the kind Dr. Carpenter did. One provision prohibits New York government officials from cooperating with an out-of-state investigation seeking to impose liability for reproductive health care activities lawful in New York regardless of patient location. The law also says that the New York Governor may not extradite anyone for legally protected reproductive health care in New York. The law was enacted precisely to protect New York doctors prescribing abortion pills to women in states where they are banned. (In the last week, New York’s law was expanded. Now only the name and address of the medical practice, not the doctor’s name, will be necessary on the prescription sent to states that ban the medicine.)

However, even though Dr. Carpenter will not be extradited by New York, her life can still be greatly affected. Of course, she will have to eschew the New Orleans Mardi Gras, but she also has to be careful about visiting other places, especially states with abortion bans. She could, for example, be arrested in Texas, which might then extradite her to Baton Rouge. Indeed, an unscheduled airline stop in Dallas could have her in handcuffs.

Could Dr. Carpenter be tried in absentia? Answer: No. A trial in absentia is one without the presence of the accused. Such trials do happen, but constitutional and state laws require a knowing and voluntary waiver of the right to attend trial. The procedures vary around the country, but everywhere they require the trial court to warn a defendant about the consequences of not appearing for trial. In other words, Dr. Carpenter could only be tried in absentia if she at first appeared before Louisiana courts, and without extradition or a strong sense of martyrdom, that is unlikely to happen.

What if Dr. Carpenter were kidnapped and taken to Louisiana? Could she be tried? Answer: Yes. Certain items of evidence can be suppressed when someone is brought to court illegally, but the case itself can go on. There are many examples of this happening sometimes from state to state, often by “bounty hunters.” The public becomes more aware when someone is brought by force to the United States without authorization from the foreign government.  (Although instead of using “kidnapping” and like terms, we use euphemisms such as “extraordinary rendition.”) A famous example was Panamanian strong man Manuel Noriega, who was indicted in Miami for drug and money laundering charges. The U.S. invaded Panama, captured Noriega, and flew him to Florida, where, after trial, he received a forty-year sentence. Of course, if Carpenter were kidnapped in New Paltz and taken to Louisiana, the abductors would be committing New York and federal crimes.

A medical health professional providing abortion pills to a person in a state where they are banned prompts us to consider the legislative legacy of Anthony Comstock.

Comstock, a United States Postal Inspector and officer of the New York Society for the Suppression of Vice in the late nineteenth century, is considered the force behind the Comstock Act(s) of 1873. These laws criminalized the use of the mails and common carriers to distribute obscene, lewd, and lascivious materials, which Comstock basically defined as anything having to do with sex. It also criminalized the distribution of prohibited contraceptive devices and information. It similarly criminalized any methods or information about abortion.

The Comstock Act is still on the books, although its use has largely disappeared for several reasons. The Supreme Court granted First Amendment protection to much of what previously had been considered illegal obscene material, largely leaving only child pornography without constitutional protection. After the Supreme Court held that Americans have a constitutional right to access contraception, Congress removed the contraception ban from the Comstock Act. And after Roe v. Wade granted a constitutional right to abortion, the abortion provisions of the Act were not enforced…or at least they weren’t enforced until Roe was overturned.

Abortion opponents have maintained that we don’t need a new law against abortion because we have the Comstock Act.  Two years ago, then-Senator JD Vance joined other conservatives in demanding that the Comstock Act be applied to abortion-related materials, including abortion pills. Project 2025, disavowed by Trump on the campaign trial but implemented by him as president, advocates use of the Comstock Act to ban abortion pills.

On its face, the Comstock Act would ban abortion pills as well as any instrumentality used in an abortion nationwide. However, past interpretations of the law held that the Comstock Act could not interfere with the state regulation of medical practice. If those precedents are followed (but who trusts the courts today?) and abortion is legal in a state, the Comstock Act would not prohibit abortion pills there. The Act could only be applied to the provision of abortion pills being sent to places where they are illegal. In other words, precisely to Dr. Carpenter’s situation.

I am not saying that this is going to happen, but if Carpenter were charged under the Comstock Act, a federal law, the New York Telemedicine Shield Law would not protect her. FBI or other federal law enforcement agents (assuming that there will be any who are not tied up seeking retribution for actions Trump has considered hostile) can arrest the doctor. No interstate extradition would be required to put her on trial, and she would be tried in federal court.

Random Thoughts

Without Any Sense of Irony

Without any sense of irony, Trump announced from Mar-a-Lago that federal workers could not work remotely.

In E Unibus Pluram: Television and U.S. Fiction (1990), the great and tragic David Foster Wallace wrote that irony is “not a rhetorical mode that wears well. . . . This is because irony, entertaining as it is, serves an almost exclusively negative function. . . . Irony is singularly unuseful when it comes to constructing anything to replace the hypocrisy it debunks.” Wallace makes reference to Third World coups overthrowing corrupt hypocritical regimes without establishing a superior governing alternative. “All U.S. irony is based on an implicit ‘I don’t really mean what I am saying.’ So what does irony as a cultural norm mean to say? That it’s impossible to mean what you say?”

Without any sense of irony, Trump blocks refugees into the United States but maintains that other countries should take in the people of Gaza. There is a lot of sparsely settled land fifty miles west of Mar-a-Lago that could easily settle a million Gazans. And if Trump thinks the Gazans would not like the Florida humidity, there is a lot of arid land in west Texas, Arizona, and Nevada where they could be settled. Of course, some of this is Native American land, but when has that ever stopped us?

Hair We Go!

We attorneys love to draw distinctions between situations. A precedent does not apply, we argue, because that situation is different from that of my client.  The spouse, although not having gone to law school, seems to have picked up the lawyerly trait. For example, when she looks at my disheveled, gray, wispy hair, and I say that the hairdo was good enough for Einstein, she draws a distinction.

Is this another reason to distrust the Bible? Proverbs 20:29 says, “The glory of young men is their strength, but the beauty of old men is their gray hair.”

The spouse did not want to go out last night, but her hair looked too good to stay home.

Super Bowl Retribution

I root against both Kansas City and the Eagles, so I may not watch the football game. Even so, I wonder if this will apply to the Super Bowl: “Philadelphia, where no good deed goes unpunished.” Steve Lopez, The Philadelphia Inquirer, January 15, 1995. Quoted in Craig Johnson, Kindness Goes Unpunished.

Trans—gression

During the election season in Pennsylvania with contested presidential, Senate, and House races, I saw ad after ad of candidates seeking votes by promising to stand up to the trans people, focusing particularly on trans girls in girls’ sports. I wondered at the time how many transgender athletes are in girl sports and asked Siri. She gave me links to news articles that said that in 2023 there were maybe 100 in college sports and five in K-12. Five.

In the picture I saw of Trump signing an executive order seeking to end transgender girls playing sports showed him, pen in hand, surrounded by a crowd of pre-teen girls. I noted to myself that those girls in the signing photo are much more likely to encounter an abusive coach than compete with or against a transgender female. Oh, wait. They were standing next to a sexual abuser.

Nullius in Verba

“Years later I learned the motto of the Royal Society: Nullius in Verba—‘Nothing upon Another’s Word.’ ” Richard Holmes, The Age of Wonder: How the Romantic Generation Discovered the Beauty and Terror of Science.

An old joke: How can you tell when lawyers are lying? Response: When their lips are moving. Now the joke has been changed to ask how can you tell when our president is lying.

Falsehoods and misinformation come so frequently from Trump that we are nearly inured to this behavior. This has emboldened his immediate acolytes to act similarly. Sometimes the lies seem plausible. Perhaps these are the most dangerous because they may be easy to accept. On the other hand, some assertions are so bizarre on their face that it is hard to believe that they are presented without detailed corroboration. The effrontery that such statements should be accepted simply “because I said so” is disturbing.

Recently the new press secretary brought effrontery to new heights when she said that the government’s freeze of foreign aid funds had prevented $50 million of our tax money going to Gaza to “fund condoms.” When she said that, the spouse said to me, “I don’t believe it.” Karoline Leavitt’s claim was so bizarre (and salacious) that any sensible person would pause before saying it to the public and check the sources, for surely people beside late-night comedians are going to make comments. And, of course, fact-checkers started to weigh in. They could find no support for the assertion. They reported that the U.S. pays 3.3 cents per condom in our AIDS prevention programs, none of which we have in Gaza. In other words, the administration was saying that we were sending 1.5 billion condoms to Gaza. That is a whole lot of fucking, but when I see pictures of the Gaza devastation, I can’t imagine where or why anyone feels romantic or horny enough to engage in the enterprise. The American bombs and missiles rained by the Israelis on Gaza have not only destroyed homes and hospitals, but also all the no-tell motels. It is offensive, especially when one should know how much attention this will draw, to make the Gazan condom claim without airtight documentation. Hey, but who cares?

On the one hand, this kind of falsehood is not scary because the bizarre assertion is sure to draw the attention of almost everyone with a shred of common sense. On the other hand, it is scary because even so, the administration announced it apparently expecting the public simply to accept it.

This effrontery is bad, but while I know that there are some Trumpistas who accept everything the ultra-processed-food-stuffed one says, I am guessing this is a minor fraction of those who voted for him. Few of them are repeating the billions and billions of Trojan Pleasure Pack “fact” seriously. Perhaps more of a concern, then, are the more plausible falsehoods. These get repeated as gospel, and in the repetition, the “facts” often take on a broader life.

My new residence has a weekly current events discussion group. As the leader of it recognizes, the views of the fifty attendees tend to be quite similar. He said recently that was why he was asking a new resident to give reasons why he had voted for Trump. The new guy gave a litany, some, at least to this ear, reasonable but some bonkers. The needle on my bonkers meter moved a bit over some of the things he said (energy independence, Black Lives Matter demonstrations), but it swung wildly over his assertion that no American soldiers were killed in Afghanistan when Trump was president. I had read a factcheck on that topic a while ago and went back to look at it. Trump did not make the claim that no American soldiers were killed there on his watch. That would have been a lie because at least forty-five of U.S. soldiers died in Afghanistan while Trump was president. Instead, he said that none were killed for eighteen months while he was in office. Several fact-checkers said that was false. There was, indeed, an eighteen-month period without deaths, but it bridged Trump and Biden. Trump’s limited but still false claim had expanded into a broader one when it was presented to us. An assertion was presented to us as a fact. Presumably this was not a knowing falsehood but something the Trump supporter thought was true. But if so, it was presented without checking its veracity. It illustrates why we should be careful in accepting what people tell us and how falsehoods may not disappear over time but expand.

However, it is not just in the political realm that I have recently encountered easily checkable misinformation. A lecturer from a nearby college’s continuing education program on the effect of social media on society started well. He said that we were going to cover fifteen weeks of curriculum in a few hours. He, however, had not planned how to do this. Instead of a thought-out presentation he seemed to be free associating. This was not good, but along the way, there seemed to be interesting factoids that made it not a complete waste of time. Then, however, factoids started coming that I knew were wrong. One concerned the famous kiss of Sammy Davis, Jr. on Archie Bunker. I had seen that episode again recently, and the lecturer had it wrong. He said that Davis left Bunker’s house and came back and kissed him on the lips. I knew that, instead, Archie’s friend asked to take a picture, and Davis, who had remained in the Queens house, readily consented. On the count of three, Davis kissed Bunker on the cheek so that it would be captured in the picture, and Carroll O’Connor as Bunker delivered a great take while the audience gave one of the longest laughs in television history. Of course, in some ways the details the lecturer had wrong were not important, and we all make mistakes. But he appeared cocksure about what he said. That made me distrust him. And, as with the condoms in Gaza, the detail he presented should have given him pause. If he was an expert about the era he was talking about, he should have thought, “Can it really be right that network TV showed a kiss on the lips between two men in 1972?” Anybody with a semblance of let-me-check-that radar would have checked it.

No one would have left the lecture with any important misinformation because of a faulty description of the kiss. Another of his stories, however, was different. He told us that the sales of a vodka brand went up remarkably after a TV ad in the 50s or 60s. A subliminal image of a naked woman, he said, one too fleeting to be consciously registered, was in the ad. This was wrong on several fronts. Among other things liquor ads were removed from television in 1948 (and from radio in 1936). There were no vodka ads at all on TV in the period he was talking about. Even so, he continued.

There was concern about the power of subliminal ads in the period he was talking about. In 1957, James Vicary, a market researcher, announced that he had conducted a test during a showing of the movie Picnic at a theater in Fort Lee, New Jersey. Vicary said that he had flashed images for a fraction of second—too brief to be consciously registered–that urged drinking Coke and popcorn during the movie and that sales of popcorn and Coke went up 57.5% and 18.1% respectively. This report fit in with the zeitgeist. The best-selling Hidden Persuaders had just been published by Vance Packard, which warned about unscrupulous manipulation of consumers by corporations. Brainwashing of American soldiers during the Korean War was in the news, and a few years later, The Manchurian Candidate by Richard Condon was published.

Vicary’s report caused enough of an outcry that the Federal Communications Commission held a hearing with a demonstration of subliminal advertising. No one seemed affected by it, and the FCC did not ban subliminal advertising, although some countries, including the UK, did.

Researchers could not repeat Vicary’s results. He could not replicate them. In 1962 he told Advertising Age that his study was a “gimmick” to drum up business for his unsuccessful marketing firm, and he had too little data to be meaningful. The theater manager where the experiment was supposedly held said no such test was ever done. But there is power in a falsehood. Wikipedia says that “Vicary’s results can be considered completely fraudulent. Vicary later retracted his claims in a television interview, but his original claims spread rapidly, and led to widespread and continuing belief that subliminal messaging is real.” The 1973 book Subliminal Seduction by Wilson Bryan Key expanded the notion of subliminal advertising from the insertion of a frame into a movie or TV show to print ads containing not easily recognized images, such as the word “sex” on an ice cube in a gin ad. His book furthered the notion of the power of subliminal messaging. Key, without much documentation, claimed that such manipulative techniques were widespread and effective.

Does subliminal advertising work? My intensive half-hour of internet research confirms my reading from decades ago. It suggests that some, but not most, researchers have found some effect in the lab, but no reliable study has found that subliminal advertising works outside the lab. (Perhaps it only works on an audience of New Jersey residents.) Even so, my lecturer indicated that the myth continues. Nevertheless, while subliminal advertising may not manipulate people, it is the case that a credible unthinking audience can be manipulated by made-up “facts” that should have been checked out by the person delivering them.

Finally, They Give Us Their Meritocracy

I see it gushing down the street overflowing the curbs and flooding sidewalks and yards. I look out the back window and see it successfully paddling upstream. I look up and see it reflected in the clouds. It is less than a fortnight, but meritocracy is on the move. Of course, that had to be because Trump signed an executive order against DEI and the always-right conservatives have proclaimed that DEI—Diversity, Equity, and Inclusion (or DEIA, Diversity, Equity, Inclusion, and Accessibility)—is the enemy of merit.

I, too, have been a critic of the term DEI. Like related concepts—affirmative action, political correctness, critical race theory, LGBTQ rights, and “feeling safe”– DEI gained traction in higher education before it did in the general population. I was not only in academics, I was also the chair of our faculty hiring committee for two decades. In that position, I heard often that we needed a “diverse” faculty. I bristled at such comments in a law school. I thought that a goal of a law school education was to teach precision in the use of language, but our use of the term “diversity” undercut this goal. We were not looking for faculty with differing political or religious views, or with different kinds of legal training, or even differing legal theories. Diversity did not mean diversity in general. It meant differing shades of skin color and perhaps different genitals or alternative sexual preference. A colleague hit the trifecta when he said that he hoped we would hire a black lesbian. “Diversity” was (nudge, nudge, wink, wink) a code word, and, while supporting many of the goals of this “diversity,” I was offended that we who taught law did not use well-defined words.

In his executive order of January 20, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” Trump decided to deal a death blow to DEI. I was curious to see how he defined this identified enemy of meritocracy. The president did require “the termination of all discriminatory programs, including illegal DEI . . . mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.” (Putting on my retired lawyer’s hat, I might say that if “illegal DEI” programs are banned, that must mean there are legal DEI programs that are not banned. But I am pretty sure that is not what is meant.) All federal employment is covered, and while the executive order is not completely clear on this, a Fact Sheet issued two days later (“President Donald J. Trump Protects Civil Rights and Merit-Based Opportunity by Ending Illegal DEI”) makes clear that those in the private sphere that get federal money must also eliminate DEI. The Fact Sheet states that the executive order“terminates diversity, equity, and inclusion (DEI) discrimination in the federal workforce, and in federal contracting and spending.”

 However, neither the executive order nor its follow-up contained a precise definition of DEI. They did not contain a murky definition. They contained no definition at all.

Hints to the meaning are given. The order states: “Federal employment practices, including Federal employee performance reviews, shall reward individual initiative, skills, performance, and hard work and shall not under any circumstances consider DEI or DEIA factors, goals, policies, mandates, or requirements.” It does not state, however, what those DEI factors are. I take the statement as ordering the end of affirmative action, but then why make me guess? Call it what it is. Say something along the line of “there shall be no racial, ethnic, gender, or disability preferences in hiring and performance reviews.” Query: Many institutions, including the federal government, give hiring preferences to veterans. Those practices conflict with the soaring rhetoric of rewarding individual skills and hard work. Are veteran preferences now illegal? By offering no definitions, these executive orders give no guidance.

However, the target seems larger than affirmative action. The order eliminates not only DEI offices and positions but also “environmental justice” jobs. The order uses those quotation marks but again lacks a definition. I don’t know what “environmental justice” means, but I assume that it is something different from affirmative action. But what is it? One needs to guess whether a given position falls into the category. For example, the job is to find sites for the storage or disposal of waste, and you seek to find a dumping ground that is NOT in poor neighborhoods. Are you on the chopping block for seeking “environmental justice”?

The executive order also prohibits “DEI training.” What does this mean? I can guess, but I have to guess. That is part of the danger in the lack of a definition. If I, as a manager, want to stay out of trouble and there is a clear boundary line for the forbidden, I know what I can and can’t do. If the zoning law forbids the construction of buildings over sixty feet, I know precisely how high I can build, and I plan accordingly. If, however, the law prohibits building to an “unreasonable height,” how high can I build? Some will push the vague injunction and build too tall. Many others, however, fearful about having to tear a building down, will err on the low side. Lawful activity is deterred by vague laws.

Assume you run a company or a non-profit that receives federal funding. You believe your institution runs most efficiently, most profitably, when the workforce is trained in racial, ethnic, and gender sensitivity. Fewer workplace conflicts mean more efficiency. Can you continue such programs? You have been ordered to end all DEI policies and programs. You have been told to end all DEI training programs. Can you now include in the employment manual that employees cannot use derogatory terms about race or gender? Do you need to seek preapproval from some government bureaucrat? Who decides what is best for your business or organization, you or the government?

The vaguer the legal mandate, the more likely different people will interpret it differently. A vague legal prohibition leads to arbitrary enforcement, something, I would have thought, conservatives would not want. And arbitrary enforcement is always an invitation to corruption. Is that what conservatives want? Is that what Trump wants?

And I thought conservatives were against government interference and regulation. Silly me.

When Trump tells private institutions how they should operate in their own workplace, conservatism is being twisted out of shape. It is one thing for the federal government to set rules for itself. It is another when it issues edicts for corporations and non-profits. If a federal contractor or grantee is fulfilling its contract or grant, why should free-enterprise-loving conservatives tell a business how to train its employees? Why aren’t these considered intrusive regulations?

On the other hand, perhaps we just have to bend principles so that good ol’ meritocracy can keep on flowing along. Surely Trump and those immediately around him consider themselves the meritorious. In recent days we have been given a good look at their notion of meritocracy. These meritorious ones have already issued and rescinded a “pause” in the operations of government. Good work, guys. I guess “meritocracy” and amateur hour can go together, at least in certain government circles.

Define It

This country’s stark divisions are exacerbated when we don’t share the meanings of words. Conversation is useless when you and I use the same terms, but they mean different things to each of us. For example, what does “merit” and “meritocracy” mean? I have looked up definitions, and they seem understandable, but those meanings have become vague and carry unshared connotations when applied. Conservatives want institutions peopled by those with merit. So do I. However, their current measure of merit for appointments in the current administration is suspect. So, e.g., you can be appointed to office only if you believe, or at least don’t question, that Trump won the 2020 election. For me a sign of merit for a government employee is the ability to recognize and expose falsehoods. For others, merit requires mouthing and spreading them. Trump often seems unique in his insistence on loyalty, but, unfortunately, this is not the case. We have had something like this before: If “inexperienced” or “lack of expertise” replaces or perhaps is added onto “stupidity,” what Michael Dobbs wrote about Nixon’s presidency in King Richard: Nixon and Watergate: An American Tragedy (2021) applies: “Stupidity was not necessarily a disqualification for high office if combined with unthinking fealty to the commander in chief.” And how did that turn out?

We can’t agree on “merit” in our jobs and institutions unless we agree on what it means to perform well. At a track meet, it is those who run the fastest. For a corporate executive, it means higher profits. But what, for example, makes a good police officer? The one who best knows the law? The one who can shoot most accurately? The one who can best talk to a mentally ill person who is potentially violent? One characteristic I believe a good officer should have is a lack of racism. How do you measure that in a hiring or promotion process?

There is yet another factor in espousing diversity, equity, and inclusion, the DEI that is such anathema to the Right. It is not just that police performance matters. There should also be public confidence in the police. However, when the police force does not look like the community it serves, the community can become suspicious of police goodwill, and respect for the rule of law can suffer. Thus, racial, ethnic, and gender diversity and inclusion in law enforcement furthers the public good. There can be merit in diversity.

Something similar can be said of the military. Just assume for a moment that all the officers were white, and all the enlisted personnel were Black. Morale among the troops would probably be lower than if the officer corps were more racially mixed. In other words, diversity among the ranks leads to greater camaraderie in the military and is a desirable national security goal.

Let’s stick with the military for a moment. Our new Secretary of Defense finds merit in and plans to stress lethality and a “warrior culture” in our armed services. (Hegseth seems to subscribe to what Bertolt Brecht wrote in The Caucasian Chalk Circle: “A good soldier has his heart and soul in it. When he receives an order, he gets a hard-on, and when he sends his lance into the enemy’s guts, he comes.” Is this also an explanation for why Hegseth does not want women in combat?) I am unaware that an improper regard for lethality and warrioring characterizes our current soldiers. Nevertheless, those slogans are misleading, and such merit has its limits. Even when there is a war, only a minority of soldiers are in combat. Moreover, today’s armed services do many things that require qualities different from those identified by the Defense Secretary. For example, Trump has sent soldiers to the border to assist in immigration control. It is my hope that lethality and a warrior culture are not the salient qualities for this assignment.

It is easy to agree that we want a meritocracy. It is another thing to define what that is or to recognize whether it exists. While it is clear that a band of conservatives feel that DEI is its enemy, they have not told us how they define meritocracy. It seems too often to require fealty to a person and to imply exclusion of those groups who have often been excluded in the past.

But perhaps more on Diversity, Equity, and Inclusion another day.

Meritocracy and Hypocrisy

It is not a new word, but the frequency of “meritocracy” coming from the mouths and pens of conservatives has made it a trendy one. The richest of them has made it a catchphrase. Elon Musk: “It’s not like America’s been purely a meritocracy, but it has been more of a meritocracy than any other place. Which I regard as good.” Musk again: “America rose to a greatness over the past 150 years because it was a meritocracy more than anywhere else on Earth. I will fight to my last drop of blood to ensure that it remains that land of freedom and opportunity.”

Musk, who is not averse to hyperbole (Isn’t your ability to fight gone long before your last drop of blood oozes onto the Tesla leather?), surprisingly qualified his meritocratic statement about America. He concedes that this country has not been a pure meritocracy, only that it has rewarded merit more than any other place.

The United States has always had limits on meritocracy. In the first place, let us not confuse merit with opportunity and advantage. The rich have always had more opportunities than others. (If you got it, you get it.) Those born into rich families have always had more opportunities. (It is easier to score if you are born on third base.)  And, of course, opportunities have always been limited in this country by race, ethnicity, religion, locality, gender, and other factors. Perhaps there has been a meritocracy in a certain pool of Americans, but that pool has been restricted. At times, it has not included Irish, Swedes, Italians, Hispanics, Asians, Catholics, Jews, women, and, of course, Blacks. Put another way, meritocracy has often been confined in this country to white male Protestants.

Even when attempts at expanding that pool have been made, they have often been circumscribed. In the 1940s, for example, some department stores started for the first time hiring Black women for sales, but there were quotas. An executive of Lord & Taylor, which was a pioneer in hiring Blacks, told The Afro-American: “It seems to me that it is only fair that the person with the best qualifications should be hired, regardless of color . . . with limitations of course. [Emphasis added] It is only natural that we don’t want to flood our place with colored people, even if they all had the best qualifications.” (Quoted from Julie Satow, When Women Ran Fifth Avenue: Glamour and Power at the Dawn of American Fashion, 2024.)

A foundational American myth has been about meritocracy and the ability to get ahead through one’s own ability. As Dara Horn says in People Love Dead Jews: Reports from a Haunted Present (2021), the legend “is that it doesn’t matter who your parents are, or who their parents were, or where you came from—that what matters is what you do now with the opportunities this country presents to you, and this is what we call the American dream. The fact that this legend is largely untrue does not detract from its power; legends are not reports on reality but expressions of a culture’s value and aspirations.” How many qualified women for how many years were rejected by medical schools and law schools because, well, they were women?

In spite of our history of the limitations on opportunities, many conservatives are furthering the legend by pretending that our meritocracy has been undermined. And what has undermined it? DEI. Yep, Diversity, Equity, and Inclusion. As though seeking the meritorious from a diverse pool, or equalizing advantages and opportunities, or seeking to include an overlooked source of qualified people is the most egregious thing that a democratic country could do even though it would seem obvious that the larger the pool from which we seek to draw talent, the more likely we are to get the best.

Another enemy, they say, is “wokeness.” I guess it’s also egregious in a “meritocracy” to want to make sure that all types of people feel as though they are equal and welcome participants in the pool.

Let Elon Musk speak again, “DEI is just another word for racism. Shame on anyone who uses it.” To say that DEI is racist implies two things: 1) You don’t believe that the previously excluded races, ethnic groups, women, or religious groups require special attention in order to join the meritocracy pool, or 2) You think that anything that undermines the hegemony of white males is threatening.  Although the opposition to DEI may have many roots, most charitably it is based on the belief that diversity is the enemy of meritocracy. It assumes that the only way diversity is achieved is by allowing less qualified people of color or women (or other groups) to leapfrog over what are assumed to be more qualified white males. Even if that is sincerely believed, those with that belief should still want to expand the pool from which the meritorious are drawn. Doubt the sincerity of those who cry out for meritocracy unless they also seek broadly for the meritorious.

At another time, Musk maintained, “The point was not to replace DEI,…but rather to be a meritocratic society.” How are you to have a meritocracy if you do not actively encourage participation by all?

Pete Hegseth, Trump’s nominee for Secretary of Defense, says Trump has told him to “clean house of the woke crap. All that stuff. Climate stuff, the (Critical Race Theory), the DEI and genderism. Get rid of it.” Not clear how “Climate stuff” got in there, but it’s clear that Trump and his cohort are fed up with trying to break down the barriers that have prevented a true meritocracy to emerge.

A familiar pattern: If something goes wrong, and if anyone other than a white male is in charge, the pejorative cry of “diversity” is uttered again and again. The mayor of Los Angeles is a Black woman, and something definitely went wrong in Los Angeles recently. However, she did not attain her position as part of a DEI movement. She was not appointed by some person who thought it would be politically correct to have a black person (and woman as mayor. No. She was picked by the electorate, just as Trump was. But still conservatives talk about her as if she were part of a DEI or woke movement.

 If a white male had been in charge, his competence might be questioned, but we don’t point to the “old boys” network that might have put him there in the first place. And we only blame DEI if a non-conservative has done the appointment or hiring of a non-white male. If Pam Bondi turns out to be a less than a stellar attorney general, diversity will not be blamed. After all, a conservative president nominated her. (Fox News presents a lot of women as hosts and commentators. Aren’t they a product of diversity?)

The anti-diversity group, however, may proclaim that the country has been successful in the expansion of the meritocratic pool and that, sadly, the pool has been exhausted. Is that why they are advocating for the expansion of H-1b visas? It is certainly the case that having more of those visas is good for businesses of rich conservatives. Among other things, they can pay those workers less. However, if the barriers to success were truly overcome in the U.S., would we need to import workers from out of the country? Shouldn’t Making America Great Again mean making sure that all Americans in fact have the opportunity to attain merit? (Not all conservatives agree that we should expand the availability of H-1b. Laura Loomer, an ardent supporter of Trump, has said, “Our country was built by white Europeans, actually. Not third world invaders from India.”*)

There are things wrong with DEI and wokeness. It is fair to criticize these movements and policies, but a meritocratic society needs more than such criticisms. It requires plans and action to expand the pool from which we seek the meritorious. I have not seen that from conservatives, and without such expansion, it sure looks as if they want to see again a future dominated by white males.

Snippets–Inaugural Edition

The inauguration was moved indoors because of extremely cold weather. What is your joke on hell freezing over?

Does this have any relevance today? “One left an encounter with Winston certain that Winston was the most interesting person alive; when one left a meeting with [Lloyd George] one convinced oneself of being the most interesting person alive.”David Reynolds, Mirrors of Greatness: Churchill and the Leaders Who Shaped Him.

I wonder if RFK, Jr., has been like me and thought that bacteria is the rear entrance to a cafeteria.

At least as defined by Mark Twain, the new president does not have good breeding, which Twain said “consists in concealing how much we think of ourselves and how little we think of the other person.”

I am frequently struck by Trump railing about a problem that he considers caused by Biden when the problem also existed during Trump’s first term. But as a wise man said, “Among the things that enable a person to be self-satisfied is a poor memory.”

Now that Elon is on the scene, I wonder if what Abraham Riesman wrote in RingMaster: Vince McMahon and the Unmaking of America continues to be true. Reisman said that Vince McMahon may be Trump’s closest friend. McMahon “is said to be one of the only people whose call Trump takes in private, forcing his retinue to leave the room so the two old chums can chat in confidence.” Trump is a member of McMahon’s wrestling Hall of Fame. Will Elon enjoy the same access?

This is not just inauguration day; it is also the day to honor Martin Luther King, Jr. There must be a site somewhere where I can bet how many times, if any, Trump mentions MLK today. We tend to think that King gave his great “I Have a Dream” speech at the March on Washington on August 28, 1963, but the complete name of the rally was the March on Washinton for Jobs and Freedom. Six decades later, the demands of that day are still incompletely met. For example, the March was asking that the Fair Labor Standards Act cover agricultural workers. That act still only partly encompasses those who till and pick our food. The rally also sought to increase the minimum wage to $2 an hour. We fall woefully short of that today. Two dollars in 1963 is the equivalent of about $20 today, and the federal minimum wage is currently $7.25 an hour. The minimum wage was $1.25 in 1963, which would be about $13 today. We would honor King if we at least thought about how we treat the working poor. (And we should remember that when King was murdered, he was in Memphis to lend support to a sanitation workers’ strike that aimed to change some of their horrendous working conditions.)

I am anything but a Trump supporter. I think many of his policies will do harm to this country, but I hope that I am wrong. Although not expecting it, I wish him success. There is much in this country that could use improvement. I could make my list. You, no doubt, could make yours. But instead, I give you what David Leonhardt said in Ours Was the Shining Future: The Story of the American Dream (2023):

“We live in the only high-income country that does not provide parents with paid leave. We live in one of the stingiest countries for daycare, preschool, and the resources devoted to children. A typical thirty-year-old man is not much more educated than his parents were. The United States remains the only rich country without universal health care insurance. American women are more likely to die in childbirth than women in many other countries. American babies are more likely to die, too. Income inequality is higher than in Western Europe, Canada, Japan, South Kores, or Australia. Almost two million Americans wake up each day in a prison or jail. Our children consider it normal to spend time at school preparing for a mass shooting. Our opioid death rate leads the world. Our roads are more dangerous than in other affluent countries, which was not true only a few decades ago. In 1980, life expectancy in the United States was similar to that in other high-income countries. We have become a grim outlier.”

Bridges and Roads, Ports and Canals.

Trump says that America is being treated unfairly at the Panama Canal and that China is running the canal. These are, of course, two separate issues. China could be running the canal, and the U.S. might still be treated fairly. And the U.S. could be treated unfairly even if China is not running the canal. But whether Trump meant one or the other or both, he has not presented information to back up what he says.

His unfairness claim might mean that Panama is discriminating against the U.S. vessels in charges and service. Or Trump might mean that even though there is no discrimination, the fees are too high for all ships. We, of course, can’t know what solutions are possible until we know what the problem, if any, is. Not surprisingly, other than his assertions, Trump has not explained how we are being screwed. I guess the implication is that if we ran the canal, our ships would pay less, but of course, so far that is only a conjecture. And thus we enter our new foreign policy.

Similarly, the assertion that China is running the canal could mean several things. Trump could be saying that Chinese nationals are manning the locks and piloting the vessels. There appears to be no evidence of that. Perhaps Trump means that the Chinese are telling the Panamanians how to operate the canal. Again, no proof of that. However, non-Trump sources indicate that the Chinese have a significant presence in the ports on both ends of the canal. If that presents issues for the United States, it is much broader than just Panama. The Panamanian ports are part of a widespread, worldwide Chinese foreign policy that has existed for more than a decade.

China has invested in or built many, many infrastructure projects around the world. At first they concentrated on the old Silk Road, but they are now involved in building roads, ports, energy plants, rails, and the like in almost every African country, some European countries (Italy, e.g.), and many Latin American nations, including Panama. Case in point: in the last several months, a new $1.3 billion mega-port, built buy China, was dedicated in Peru.

In China’s global Belt and Road Initiative, state-run Chinese Banks have made huge loans to countries, and Chinese construction companies have won many, perhaps most, of the contracts to do the building. China lends money, and then gets much of it back almost immediately because Chinese companies are hired. And they get more money back in the longer term through loan repayments.

America has no comparable initiative. If the Chinese BRI is a national security concern for us, we have had no response other than larger and larger defense spending. (Our defense budget is larger than the next nine countries [including China’s] combined.) Perhaps our security, and the world’s economy, would be better served if some of the money spent on defense contracting went to constructing bridges and tunnels, dredging harbors and building piers, and laying rails, gravel, and asphalt. We are, however, not likely to have any fundamental reconsideration of our defense spending. There are many more areas of “wokeness” in this country than the ones conservatives use as a punching bag, and defense priorities fall in that category. Neither right nor left are willing to question the defense budget. What a wise person said about one branch of the military in essence applies to all the armed services: “The navy recognizes no criticism as constructive except that which calls for the building of additional ships.”

Trump’s jejune rants about Panama are troubling. The suggestion of using military force to take back the canal is worrisome. Bluster can sometimes lead to unwanted, unplanned action. For example, in the 1960s and 1970s the U.S. anticipated that without the Panama Canal Treaties, guerilla attacks on the canal would multiply. If we seize the canal, won’t such warfare emerge? And seizing the canal does not address the Chinese presence in the port cities. Is Trump suggesting armed force to remove the Chinese from their investments and what they have built? That potential aggression, that act of war should scare everyone.

If, however, Trump would broaden his perspective from the Panama Canal to a coherent American response to the BRI, he would be truly advancing American interests. This is unlikely. The BRI was well underway in his first term, and he ignored it. Nothing indicates that he has thought much about it since. Furthermore, grappling with the Chinese actions could cast doubt on Trump tariff policies. The U.S. has been the chief trading partner of Latin America. That is about to change, if it has not already. Trade between China and Central and South America has multiplied dramatically, and America is destined for second place in trade with our southern neighbors for the long term. The change in trading patterns partly stems from the new Latin American ties China has built with the BRI, which have led to China signing free trade agreements with South American counties. The absence of tariffs has led to more trade for both China and Latin America and has given a greater Chinese presence in the Americas. Meanwhile, our proposed foreign policy will apparently rely on increased worldwide tariffs without the equivalent of the Belt and Road Initiative. Why is Trump or anyone surprised that China’s influence in Latin America is increasing while ours wanes?