Wednesday, October 29, 2014

Election 2014: Looking for the weathervane

THE NEW MSNBC pre-election promo ad made its debut over the weekend. The refreshingly speech-free ad features a number of the channel’s hosts and personalities and friends, holding fingers to their lips — fingers marked with the word “VOTE.” After several seconds of this, the ad finally drops the big reveal in another card:

“The Time for Talk Is Over.”

All due props to the folks at MSNBC for this soundless call to civic action, but in some important ways, they couldn’t be more wrong. The time for talk may well be over for the punditburo —  the Beltway crowd and the analysts, the seers and Sabbath gasbags who’ve been talking about the upcoming election since the last one was over.

For most of the country, the time for talk — for a serious discussion of the issues local and national, among themselves and with the people they know and trust — is just getting started. And to go by a variety of recent opinion polls of those American people, they’re talking by not saying very much that’s committal one way or the other. At least out loud.

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As opinion polls come back with results as gridlocked and inconclusive as we think Congress is, what comes clear is an electorate wrestling with a choice of undesirable outcomes: two more years of stalemate and stratagem from a Congress determined to do as little as possible as long as possible; or two years of a unified Congress free at last to exact its own privatizing, corporatist agenda under a majority-Republican banner.

The early money said Republicans were a lock to recapture the Senate, if just barely. That may or may not happen, but what’s been missing in recent weeks is the cocksure certainty that it will happen.

To a great extent, recent polling, demographic assumptions and research used by mainstream media, political analysts and the campaigns themselves have been forced into a state of unknowing, an uncertainty  that suggests the election six days away may be more of a horse race than many have believed. They’re all looking for the weathervane to know which way the wind blows, and all that many campaign seers see right now is the dead calm of no discernible wind at all.

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IN THE Daily Beast on Oct. 22, veteran political reporter Eleanor Clift reported on a recent focus group of women in Charlotte, N.C., and posited their response on the candidates in their pivotal state as typical of voters around the country:

The women gathered around a table Monday night in Charlotte and in New Orleans are registered voters, but this election they’ve pretty much tuned out politics. It’s just too depressing when all the candidates do is bash each other. And world affairs are no comfort either, with Ebola surfacing as the latest scary thing.

Better to put on blinders, they say, and focus on home and family.

The fact that [Sen.] Kay Hagan in North Carolina and [Sen.] Mary Landrieu in Louisiana are women doesn’t much impress these voters, dubbed Walmart Moms for their shopping habits and having at least one child under 18 at home. When asked whether they would vote for Hagan or her challenger, Republican Thom Tillis, they resisted siding with either candidate. Asked if Hagan deserves reelection, not a single hand went up -- which is the same thing that happened when asked if she didn’t deserve reelection.

“All those ads and you don’t know one way or another?” the moderator pressed. Many millions have been spent on television ads in North Carolina, as groups on the right and left try to sway the electorate.

When would they decide? “When it gets closer to the time,” one woman said. How would they decide? “Google it,” said another. When? “Probably the night before.”

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WHAT CLIFT reported is both dispiriting and encouraging. It’s dispiriting because it dovetails so seamlessly with the longstanding political truism that midterm voters don’t show up, as a matter of course — and also because it suggests that, despite years of living with Hagan as their senator, these North Carolinians are even disengaged as to what she’s already done in the state they live and work and pay taxes in.

But it’s perversely encouraging too. It means that despite millions in TV ad money flooding the North Carolina market (about half and half for Democrats and Republicans alike, The Wall Street Journal reported), voters aren’t being pushed into deciding anything on the weight of those ad buys. At least not yet. Whoever wins or loses the ad war really doesn’t matter — not to the public those ads are aimed at, anyway.

Neil Newhouse is encouraged, too, but for other reasons, not necessarily correct. “If control of the senate goes through North Carolina, then these women are ripe for the picking,” said Newhouse, the Republican pollster whose Public Opinion Strategies firm conducted the Charlotte focus group, with Democratic strategist Margie Omero of Purple Strategies.

But if they’re “ripe for the picking,” why haven’t they been picked yet? The power of TV and direct-mail advertising isn’t to be overlooked in a hot race like North Carolina’s. But the question remains: With just days before the election, what more can you do to reach, to persuade these presumably persuadable voters that you haven’t already done?

Omero told Clift: ““There’s a much lower level of engagement than you’d expect given all the ads, and all the money. They’re tuning it out.”

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One reason for disengagement may have to do with efforts, loose in the nation, to suppress voter turnout altogether, and it’s in this matter the Republicans face the biggest risk of blowback — of people finally deciding to show up at the polls out of civic pique, people coming to the conclusion that even if they don’t want to vote, they’ll be damned if one party or the other is gonna stop them from voting.

Republican efforts to curtail exercise of the American franchise are an inherent contradiction. There’s something fundamentally twisted and wrong with a political party that wants the American people to cast a vote expressing their resentment at the same time that party’s doing everything it can to stop a lot of the American people from voting at all.

Undeterred, they’re taking a different familiar tack. The two epidemiological preoccupations of the moment — Ebola and ISIS — are being symbolically exploited by the GOP. Republicans in the states up for grabs and on Capitol Hill have been trying to nationalize the midterms, trying to make November 4th the date of the national immunization election — the date to purge themselves of all things Obama, and by extension the candidates of his party, and everything “bad” that’s happened under his watch.

Stairway to a settlement?

RANDY CALIFORNIA, the founding guitarist of the seminal Los Angeles-based rock group Spirit died on Jan. 2, 1997, in the act of rescuing his 12-year-old son Quinn from a vicious rip current off Molokai, Hawaii. He was 45.

He lived long enough to vent his spleen about something important with journalist Jeff McLaughlin in an interview in the winter 1997 issue of Listener magazine. “I’d say it was a ripoff,” California said. “And the guys made millions of bucks on it and never said ‘Thank you,’ never said, ‘Can we pay you some money for it?’ It’s kind of a sore point with me. Maybe someday their conscience will make them do something about it.”

The “guys” referred to by California (given name: Randy Craig Wolfe) are the subjects of a lawsuit that, almost 18 years after the guitarist’s death, will revisit one of his songs and another one, a song that’s made its way into the pantheon of rock under other composers’ names.

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In 1968 Spirit released its eponymous debut album, which included the two-minute-37-second instrumental track “Taurus,” which was written by California, one of the band’s principal songwriters. What’s at issue in the lawsuit filed in May, in the U.S. District Court for the Eastern District of Pennsylvania, concerns the opening arpeggio of “Taurus” and its role in the composition of “Stairway to Heaven,” the eight-minute rock classic by “the guys,” Led Zeppelin, the famed British rock-blues band.

“What happened to Randy California and Spirit is wrong,” says part of the lawsuit. “Led Zeppelin needs to do the right thing and give credit where credit is due. Randy California deserves writing credit for "Stairway to Heaven" and to take his place as an author of Rock's greatest song,”

On Oct. 10, U.S. District Court Judge Juan Sanchez denied a motion to dismiss without prejudice, setting the stage for a jury trial to proceed — or, best case, a settlement to make a trial unnecessary. The case of Led Zeppelin et al. v. the Randy Craig Wolfe Trust is very much on.

From the June 2 Hollywood Reporter: “The plaintiff is demanding statutory damages, defendants' profits, punitive damages plus equitable relief in the form of an order that Wolfe is credited as a writer of ‘Stairway to Heaven.’ A footnote in the lawsuit indicates that funds obtained from the lawsuit will go into a trust whose proceeds go to buying needy children musical instruments.”

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UPI REPORTS: “To show infringement under U.S. copyright law, you generally need to demonstrate two elements: that an original work was copied to make something substantially similar, and that the copier had access to the original work.”

“Access” would certainly be provable. Led Zeppelin and Spirit toured together not long after the Spirit debut was released, and throughout 1969 — almost certainly sharing songs and ideas on the road, as bands have done forever.

UPI cites John Hartmann, a music scholar and lecturer at Loyola Marymount University in Los Angeles, who explained that if it comes to a trial, the case would become one of dueling musicologists battling over how similar the songs are or are not.

“In a court this would be measured by experts, and a jury would have to decide,” he says.

“Measured,” eh? O.K., just for the hell of it ... let’s try to do exactly that from the plaintiffs’ perspective. Let’s play lawyer pretend.

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“Good morning. Your Honor, we hold that the melody to ‘Stairway to Heaven’ is materially the same as the song by Randy California. And contrary to the assertions of defense counsel, the similarities don’t end with merely a repetition of the chord progression, which in and of itself isn’t protected by copyright. Nor do they end with ‘Stairway’s’ beginning. The “Taurus” melody is the literal underpinning for much of what follows throughout the eight minutes of ‘Stairway,’ not just the opening passages. And we contend it’s similarity not obscured by amplification or the lyrics on top of the melody.

“Please indulge a granular explanation:

“We contend that the opening two minutes and 15 seconds of ‘Stairway’ are a virtual note-for-note transcription of ‘Taurus,’ with little adornment or variation. It’s our position that this 28 percent of ‘Stairway,’ give or take, is indisputably the provenance of Mr. California.

“Further, Your Honor, the antecedent melody is used intermittently throughout the remaining six minutes, or 75 percent of ‘Stairway,’ interlaced with transitional passages originating with Led Zeppelin. ‘Stairway’ is a layer cake of a song, Your Honor — one you can actually put to stopwatch courtesy of any YouTube video with a recording of the song in question.

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THE FIRST inarguable Led Zeppelin passage occurs at 2 minutes 15 seconds, and lasts 25 seconds. That’s followed by a return to the California melody, about 28 seconds long (from 2:40 to 3:08). That’s followed by another Led Zep passage, lasting 21 seconds (from 3:09 to 3:30), which is followed by a return to the antecedent melody by Mr. California, lasting 29 seconds (from 3:31 to the 4-minute mark).

“Nineteen seconds follow from Led Zep’s brow, from 4:01 to 4:20. Then it’s back to the California melody for 24 seconds (4:21 to 4:45). Then back again to a Led Zep passage for 22 seconds (4:46 to 5:08), and again back to the California melody for 24 seconds (5:09 to 5:33). And then, we finally return to the closing hammer of the gods a la Led Zeppelin for the remaining 2 minutes and 26 seconds of the song.

“This last 2:26, Your Honor, is the greatest departure from Mr. California’s undergirding melody, and would seem to be wholly Led Zep’s own invention, as is the admittedly legendary guitar solo work by co-defendant Jimmy Page throughout that time.

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“Computing then: if we concede the final 2:26 is wholly Led Zep’s creative entity, that comprises about 31 percent of ‘Stairway’ whose origins with Led Zep is uncontested.

Tuesday, October 7, 2014

Evolution days: Marriage equality in America

THE SEA CHANGE by default that took place on the U.S. Supreme Court’s annual official first day of business marked another turning point in the nation’s slow acceptance of marriage equality. The first Monday on October wasn’t even over and the most judicially activist Supreme Court in years had made history by doing nothing at all.

With its refusal to hear appeals from a quintet of states that challenged lower court rulings legalizing same-sex marriage — Indiana, Utah, Oklahoma, Virginia and Wisconsin — the high court resisted its own reliably conservative tilt on social issues, opening the door for the most sweeping and seismic shift in civil rights since the era of the civil rights movement.

The Supremes’ no-ruling ruling also paved the way for legalization in half a dozen other states under the same lower courts’ jurisdiction. The Associated Press reported Monday that residents of Colorado, Wyoming, West Virginia, North Carolina and South Carolina “should be able to get married in short order. Those states would be bound by the same appellate rulings that were put on hold pending the Supreme Court's review.”

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It wasn’t an absolute slam-dunk. “Two other appeals courts, in Cincinnati and San Francisco, could issue decisions any time in same-sex marriage cases,” AP reported. “Judges in the Cincinnati-based 6th Circuit [Court of Appeals] who are weighing pro-gay marriage rulings in Kentucky, Michigan, Ohio and Tennessee, appeared more likely to rule in favor of state bans than did the 9th Circuit judges in San Francisco, who are considering Idaho and Nevada restrictions on marriage.”

But the raw numbers of population are compelling. Sam Stein and Amanda Terkel of The Huffington Post reported Monday that: “The total population of those states, based on 2013 estimates from the Census Bureau, is about 190 million. Just over 60 percent of the U.S. population now lives in a state where marriage equality soon will be legal.

“Prior to Monday, that total was just under 44 percent -- if you discounted states where same-sex marriage was legalized but there were still court challenges. In all, the Supreme Court's decision on Monday set the path for an additional 51,579,771 people to live in states with concrete same-sex marriage rights.”

Richard Socarides, a gay-rights advocate and former adviser to President Clinton, told Politico that’s Monday’s news “is a terrific result, for now. It’s a little bit incremental, but I think it’s a fantastic result and we should celebrate today.”

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THE COURT’S consistently liberal wing has taken a wait-and-see approach, apparently content to watch  how the state-by-state expansion of same-sex marriage plays out organically in the real world.

“The more liberal justices have been reluctant to press this issue to an up-or-down vote until more of the country experiences gay marriage,” Walter E. Dellinger III, acting United States solicitor general in the Clinton administration, told The New York Times. “Once a substantial part of the country has experienced gay marriage, then the court will be more willing to finish the job.”

And three weeks ago, at a lecture at the University of Minnesota Law School, Justice Ruth Bader Ginsburg warned that “there will be some urgency” for the court to act if the 6th Circuit breaks with the trend toward same-sex marriage accelerated on Monday. Otherwise, she said, there would be “no need for us to rush.”

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Conservatives were deafening in their silence on Monday. For a while anyway. Republican Sen. Mike Lee of Utah issued a statement, calling the court’s decision “disappointing.”

Lee’s statement, a weak retrenchment to conservative values, included a proposal that would make the issue of marriage equality subject to a hodgepodge of state laws. “Nothing in the Constitution forbids a state from retaining the traditional definition of marriage as a union between a man and a woman,” he said. “Whether to change that definition is a decision best left to the people of each state — not to unelected, politically unaccountable judges.”

Kate Nocera of BuzzFeed reported Monday that Texas Sen. Ted Cruz planned to introduce an equally improbable constitutional amendment “to prevent the federal government or the courts from attacking or striking down state marriage laws.”

Saturday, October 4, 2014

Justice for Jordan Davis

WHEN THE news came on Wednesday, it was like a thunderclap announcing rain in the desert. Michael Dunn, the man who killed Jordan R. Davis, a black Georgia teenager who was shot to death in Jacksonville, Fla., in November 2012 for the crime of playing music too loud, was found guilty of first-degree murder. A life sentence awaits.

These dry, juiceless facts only barely touch on the volatile cross-currents of race and culture that wound through Dunn’s trial. But the outcome of the trial revealed more than itself; it was a frankly unexpected vindication of the idea of a fair trial made real, in a state with a history of weighting the scales of justice on the basis of race.

The jury deliberated for little more than five hours before finding Dunn, a white Floridian, guilty of firing 10 shots into Davis’ Dodge Durango SUV outside a Jacksonville convenience store, killing Davis, then fleeing the scene with his fiancée. This trial followed the one in February, when Dunn was convicted of three counts of attempted second-degree murder. That trial aroused the rage of African Americans for the monstrous human arithmetic announced in the verdict. Dunn was found guilty on three counts of attempted murder (one for each of Davis’ three passengers) and guilty on the charge of firing into an occupied vehicle.

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But on the main count — the charge that Dunn wantonly took a young man’s life with shots from a 9mm — the jury came to no agreement, despite having the options of convicting Dunn on lesser charges of second-degree murder or manslaughter.

The February jury failed to agree on whether Dunn’s killshot — the one that took Davis’ life at the age of 17 — was first degree murder, second degree murder or manslaughter. Thus deadlocked, the judge declared a mistrial on the one count that mattered.

There was no conviction in February for the most serious matter in this case. The verdict confirmed the idea that, in practical terms, Jordan Davis did not exist.

The jury’s relatively brief deliberation in yesterday’s trial made clear a determination not to make the same mistake twice.

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BUT CALL IT Ferguson fatigue: Some news reports in the mainstream media went to great pains to play down the trial’s racial component, describing it in the context of “Florida man convicted of teen’s murder,” a descriptive generality as thematically dishonest as it was factually incomplete. The racial dimensions of the case were there from the start; anyone who read Dunn’s venomous jailhouse letters knew that already. Attempts to scrub the case’s racial overtones bump up against an exhaustion with the spate of race-related police shootings and encounters we’ve been party to all year.

African Americans don’t have the luxury of such willful amnesia. Instead, we’re subject to another malady, a kind of fatalism about how such trials often turn out. It’s a sad leitmotif of black American life vis-à-vis law enforcement: Expect the worst, and you won’t be disappointed.

Some in Jacksonville were expecting the results, but various tweets and comments appending several online news stories about the latest Dunn trial took on a tone of pleasant shock. “Finally, justice for a young black man.” “This is shocking.” “I’m surprised.” “About time.” At the end of the day, that may be the most shocking thing about the verdict: That we’ve become so accustomed to the predictable outcome of the exoneration of such racial violence on the flimsiest of pretexts, it surprises us when the script gets flipped and real justice is done.

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Dunn is done too. In February, Assistant State Attorney Erin Wolfson told USA Today that each of the three attempted-murder counts carries a 20-year minimum mandatory sentence. That’s 60 years right there. Jackelyn Barnard, spokeswoman for the State Attorney's Office, told USA Today that the sentences must run consecutively.

“You are looking basically at life in prison,” Dunn defense attorney Cory Strolla told CNN, in February, when asked to speculate on his client’s time behind bars. “At 47 years old, that's a life sentence regardless of count one.”

Since a first-degree murder conviction in Florida means life without parole, Dunn’s earlier life sentence on the lesser charges gets even worse, if that’s possible. The sentencing hearing, now set for Oct. 17, is already not much more than a formality.

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IF YOU can imagine a bright side to such a trial, it was there not just in the verdict, but also in the jury that delivered it. Seven white men, three white women, one black man and one black woman sealed Dunn’s fate on Wednesday. It was a rare but welcome victory over our reflexive color-based cynicism, our collective tendency to handicap the outcome of a racially-tinged trial on the basis of who sits in the jury box.

Ron Davis, Jordan’s father, understands this. “I wanted Jacksonville to be a shining example. That you could have a jury made up of mostly white people — white men — and be an example to the rest of the world to stop the discriminatory practices,” he said after the trial.

It would be fittingly anodyne if Davis’ message resonates in other courtrooms, at other trials, along with the bittersweet expression of Lucia McBath, the most eloquent family spokeswoman, a mother deprived of a son.

“Words cannot express our joy, but also our great sorrow,” McBath said after the verdict. “We know that Jordan has received justice and his life and legacy will live on for others. But at the same time, we’re very saddened by the life that Michael Dunn will continue to live. We are saddened for his family, his friends and the community that will continue to suffer by his actions.”

“But we are very grateful that justice has been served — justice not only for Jordan, but justice for Trayvon and justice for all the nameless and faceless children and people that will never have a voice.

"Justice can be served, and it’s not based on the color of your skin.”

Image credits: Jordan Davis: The family of Jordan Davis. Dunn: via Talking Points Memo. Lucia McBath and Ron Davis: Bob Mack (pool) via USA Today.
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