Of Failure and Frustration
Acclimating to decline and loss
First things first:
At least 200,000 Americans have now died of Covid. Statistical analysis indicates that the number is much higher. But compare:
I should be respectfully cautious here, for two reasons. First, the tragedy of these deaths are what matters, not whatever tendentious point I and others might make of them. I need to let the enormity of this loss sink in.
Second, The New York Times might have a slightly different count, estimating that we won’t cross the 200,000 threshold until tomorrow. At that point, they may then give the sad milestone the same attention they gave the matter in May when half as many Americans had died.
But if they don’t—well, we have a vivid illustration of the inverse relation between size and concern. The more deaths, the less we care. One child at the bottom of an empty well can transfix a nation. The death of 200,000 becomes a mere statistic.
I truly hope The Times proves me wrong with a devastating front page tomorrow, and that I have to take this back. But even if they do, the fact remains: we are becoming habituated to our national failures.
Speaking of failure
Democrats have had their asses kicked on the judiciary and the Supreme Court, and it will be at least a generation before they can possibly rectify their strategic mistakes. Hundreds of thousand of words are being written about the rank hypocrisy of filling Ruth Bader Ginsberg’s seat before the election. It’s grotesque, and I hope individual senators pay a profound price, in this election and in elections to come.
I believe they will.
But it should never have come to this. Ginsberg should have retired soon after Obama was first elected. With all due respect for her extraordinary life and career, on this, she fucked up.
“The impression I got from her was that it was presumptuous for someone else to decide how and when you should end your judicial career,” says Margaret McKeown, a friend and a judge on the U.S. Court of Appeals for the Ninth Circuit. “That is such a personal decision. And when you have a mind as sharp as hers, why wouldn’t you continue?”
I can answer McKeown’s question: Because the risk were too great. That is, Ginsberg herself was presuming much too much.
Word is, she held off so that a woman president—Hillary Clinton—could choose her replacement. Whatever satisfaction she might have gotten from that, it was still putting her personal wishes ahead of the country.
Obama is also not blameless here. In whatever subtle back-channel way they handle these things, he should have pressed Ginsberg to let him pick her replacement. He also should not have let himself get beaten on the Merrick Garland nomination.
“McConnell had him by the balls,” you may be thinking. “What could have done?”
My first answer is: Whatever it took.
My second answer is: He should have done whatever Mitch McConnell would have if the situation were reversed.
Fact is, Obama barely tried to win that battle. As much as I admire him, there was always a too-cool-for-school quality to the guy, never wanting to get his hair mussed. As his wife famously said, “When they go low, you mofos are on your own.”
Or something like that.
Finally, congressional democrats should have made a stink about Anthony Kennedy’s resigning. Because something does stink about that—namely, that his son was Trump’s banker at the notoriously corrupt Deutsche Bank. Raising questions would not have reversed Kennedy’s decision, but it would have shined a light on the tacit shady understanding these Republicans have with one another.
And speaking of failure, part 2
Some eighteen months after he completed his “mealy-mouthed” report, Robert Mueller is finally getting the opprobrium he deserved all along.
When Barr first bastardized Mueller’s work, hope persisted that the report itself would still deliver the coup de grâce on the Trump presidency. I wasn’t buying it. At the time, I wrote Josh Marshall, at Talking Points Memo, that I didn’t understand why he and others weren’t being harder on Mueller:
“We’ve credited Mueller with far more moral rectitude than he has actually shown. (He looks the part, being a tall male and all, and in American life that goes a long way.) He was explicitly tasked with deciding the question of obstruction. As Lawrence Tribe and many others have pointed out, it’s inexplicable that he deferred the question to "the politicals,"especially in light of Barr’s well-known opposition to any obstruction charge. Imagine a judge in a routine criminal or civil matter saying, ‘fuck if I know!’
“To my mind, Mueller punting is the equivalent to Colin Powell on WMD before the UN: a clear, character-defining instance of moral cowardice. Years ago, I happened to meet a member of the Bush administration—a guy whose name you know but not one of the top players—and asked him if anyone could have stopped the rush to war with Iraq. The guy looked at me like I was mayor of Stupidtown for even asking the question. “Well, Powell, obviously," he said. Yet the public largely gave Powell a pass, or anyway, it never delivered the damning verdict on him that he deserved. Collectively, we needed the myth of his rectitude. I think that’s what’s going on here.
“Mueller might well have decided that Trump’s actions didn’t rise to the prosecutable level of obstruction. The point is, it was his job to decide one way or another. And he simply didn’t. He wussed out. He’s Gary Cooper in High Noon, minus the last act.”
Josh Marshall printed my email and kindly responded at great length, commending Mueller as an institutionalist and holding out hope that the report itself would be far more damning and decisive than Barr’s summary (and Mueller’s weird silence) suggested. God-like, Mueller didn’t have to answer our prayers or bother with news cycles, went the excuses Marshall and many others made.
When the report did come out, Mueller’s defenders tried to grab onto whatever insubstantial handholds it provided. I read its 800-plus pages, and while, yes, it does paint a damning picture of Trump, his shitty children, and the miscreants he has surrounded himself with, it nevertheless pulled every possible punch. He cut incredibly lenient deals with Trump associates, even as they repeatedly lied, without requiring additional testimony. He didn’t subpoena and interview Trump, Don Jr. or Ivanka under oath. Most importantly, when Trump said that investigating his corrupt financial ties to Russia would be a “red line,” Mueller said, “no worries there, chief,” and never examined the leverage Putin had on Trump. Mueller wouldn’t even admit that the Office of Legal Counsel opinion impinged on his declining to indict Trump for obstruction of justice, though it clearly did.
All this allowed Barr to completely misrepresent the report. Worse, Mueller shockingly didn’t even ask to review Barr’s summary. And when he testified before Congress, he said next to nothing. It was just “I take your question,” and no attempt to answer it.
It was pathetic. He failed the American people.
One of Mueller’s top deputies, Andrew Weissmann has now written a book describing this colossal failure and his frustrations. I haven’t yet read Where Law Ends, but I have read George Packer’s interview in The Atlantic, as well as reviews and news articles. Although Weissmann is personally fond of Mueller, he cannot escape the conclusion that he abdicated his role as prosecutor. In other words, Mueller wussed out:
“Had we given it our all—had we used all available tools to uncover the truth, undeterred by the onslaught of the president’s unique powers to undermine our efforts?” he writes in the introduction. “I know the hard answer to that simple question: We could have done more.”
Including himself in the criticism, Weissmann later writes:
“We were left feeling like we had let down the American public, who were counting on us to give it our all.”
Finally, what Weissmann says of Barr could just as well apply to Mueller:
Barr, he says, is one of the “old white men who’ve participated in, or condoned, improper or illegal conduct by the White House.”
Jeffrey Toobin has been likewise damning in True Crimes and Misdemeanors.
Last night, I got texting a friend about this, and he said there was no sense in “finger pointing” at this stage in the game.
I disagree.
Until we admit and own up to our collective and individual failures and misguided tendency toward moral vanity and wishful thinking we are going to keep on losing. The moronic inferno of this summer of riotous protests is yet another example, very possibly handing Trump his re-election.
Speaking of failure, part 3
Truth is, I’m just as guilty of cluelessness as anyone. In 2016, I was certain Trump couldn’t possibly win and blithely ignored the screaming sirens. Two months ago, I told my sister there was no possible way Republicans would have the temerity to replace Ginsberg should she die this close to the election.
My impatience with the foolishness of others is, really, impatience with my own.
Comments are welcome.