A Misunderstanding Or Projection?

 I am now reading that a number of Democratic Senators are stating they will not meet with any Trump Supreme Court nominee since "they already know how they will be voting".  Under normal circumstances nominees make the rounds to meet with Senators and answer their questions prior to a confirmation hearing.

The notion that any Senator knows how a Republican nominee will vote on key issues confronting the Court is simply false.  Is this notion a result of a misunderstanding of how justices think or is it a projection of how Progressives think about the law?  I think the confusion arises because it is a true statement for Democratic nominees and thus projection.  If you look over the Court decisions on the most contentious issues during the 21st century you will see Democratic justices voting together while Republican justices often split on these issues.  The reason why the press speculates in a contentious case whether a Republican justice will be a "swing vote" but never a Democrat is for this very reason - the Democrats are predictable, they stick together.

And even when the Republicans stick together they are more likely to issue concurring opinions than Democrats.  A concurring opinion means the justice agrees with the conclusion reached by their colleague writing for the majority but disagrees in whole, or in part, with the reasoning.  If a majority opinion is not joined in by a majority of those agreeing with ruling its precedential value is limited.  By not issuing concurring opinions even when it is clear from their other opinions that they disagree with the underlying reasons for the opinion of the justice writing for the majority, the authority of the opinion for precedential purposes is strengthened.  Probably the most notorious example is Justice Kennedy's opinion in Obergfell (the gay marriage case), an opinion in which all four Democratic justices joined even though they must have gagged at Kennedy's reasoning.

The Democratic strategy is no secret, Justice Ginsburg spoke openly of it to a New York Times reporter several years ago.  The idea was that on key cases the Democratic justices would vote as a bloc and not write any concurring opinions.

The reason for the lack of underlying diversity in Democratic nominee opinions versus those of their Republican counterparts derives from their differing legal philosophies and it also explains the frustration of many conservatives who complain that Republican appointed justices are "unreliable", a complaint you never hear from liberals and progressives about Democratic appointees.

While Republican appointees all express adherence to some form of originalism - trying to ascertain what the words in the constitution meant at the time of its adoption - they differ on the means by which they apply it.  In addition they differ on the role of precedent in rulings (Roberts and Thomas being at polar opposites on this) and the degree to which the institution of the Court itself must be protected.  They also disagree on the approach to statutory interpretation as well as the deference owed to administrative agencies.  The result is much more frequent splintering of the Republican appointees and even when they agree they are not shy about writing concurring opinions explaining alternative reasons for reaching the same conclusion.  Even on the most contentious issue facing the Court, the future of Roe v Wade, there are only two of the five Republican appointees who would support overturning it - Thomas and Alito.  It is also why you have Gorsuch recently writing a very non-conservative opinion for the court on the meaning of "gender" under the Civil Rights Act and both Kavanaugh and Roberts have frequently sided with the Democratic appointees who, as always, vote as a bloc.  Roberts in particular, has proven supportive of the new legal field of Trumplaw, writing opinions against the administration for acts that would have been legal under prior administrations.

Because of the approach of the Republican appointees you will often see them make rulings that are likely against their personal beliefs or politics.  There was no fiercer defender of the rights of citizens against illegal search and seizure and the rights of criminal defendants to fair jury trials than Justice Scalia.  And despite the strawman arguments against originalism and textualism by progressives ("the 2nd amendment only applies to firearms that existed in 1790!") it was Scalia who wrote the Court's opinion that the use by police of a thermal device as they drove by a house to detect the heat generated by a marijuana growing operation was an illegal search.

In contrast it is difficult to find opinions by Democratic appointees that appear to conflict with their beliefs and politics.  That is not hypocrisy on the part of the justices; it is consistent with their philosophy of Living Constitutionalism which is a results oriented judicial philosophy compared to the various approaches of Republican justices which are process oriented.  Living Constitutionalism converts the judiciary to becoming effectively just another legislative branch of government.  You just need to decide what policy outcome you want and then structure a legal argument to support it.  One could ask, if that is the right approach, why even bother with a Supreme Court?

If Amy Barrett is confirmed I think her opinions will in many cases be consistent with conservative policy but there are going to be instances where conservatives are disappointed..  Progressives never have to worry that one of "their" justices will disappointment them.

Gimme Shelter

The finest song recorded by The Rolling Stones, the one I believe will endure the longest, Gimme Shelter was the first track on the album Let It Bleed, released on December 5, 1969.  A grim and turbulent song released in a grim and turbulent time.  There is so much to talk about with this song because each element is essential to its menacing atmosphere and its staying power.

The Music

We begin with Keith Richard's memorable guitar riff slathered with echo and tremolo and then he adds touches via another guitar overdubbed.  Keith's guitar is tuned to non-standard open tuning, meaning if you just strum the open strings it plays an E chord.

Nicky Hopkins hits one chord on the piano about 33 seconds in, which is then repeated periodically.

At 40 seconds, drummer Charlie Watts enters.  Charlie is noted for playing simple drum parts, usually not very distinctive, but on Gimme Shelter we hear something different.  At 47 seconds he varies the beat slightly, hitting the toms four times and adding a cymbal crash, a pattern he repeats throughout the song, a pattern that adds even more drama to the already dramatic lyrics.

At that point the basic rhythm track is in place and continues throughout the song.  At 2:03 we hear a heavy grinding harmonica played by Mick Jagger and then, at 2:19, the tempo changes and we move into the break and Keith's perfect guitar solo.

Moving into the last verse the basic rhythm track resumes and repeats relentlessly into the fadeout at song's end.

The Lyrics

The first line, "Oh, a storm is threatening my very life today, if I don't get some shelter, oh yeah, I'm gonna fade away" sets the tone and the chorus to the first two verses reinforces it, "War, children, it's just a shot away, it's just a shot away".

Then comes the chorus after the guitar solo which ratchets the danger and sense of unleashed evil to another level, "Rape, murder, it's just a shot away, it's just a shot away".  Hearing those lyrics as an 18 year old in 1969 was shocking.

While the final chorus, "Love, sister, it's just a kiss away, it's just a kiss away" attempts to inject hope and redemption into the mix, the oppressive lyrics and music of the prior three minutes overwhelms that note of optimism.  Nonetheless, it is a needed relief from the grim tone of the rest of the song.

The Vocals

Jagger is fine on vocals but we need to talk about what astonished all of us hearing it for the first time, when our immediate question was "who is that woman doing that incredible singing??".   It was Merry Clayton, a 20 year old singer living in Los Angeles, where the Stones were recording.  It was the middle of the night, Jagger wanted a female vocalist and producer Jack Nitzsche, who knew Merry, called her after midnight to come into the studio right then and there.  Merry, in bed, pregnant and in curlers, who was not familiar with the Stones, came into the studio and did a couple of takes.

Prior to the break you can hear her singing along with Jagger but when it came to "rape, murder" it is all Merry.  It's an electrifying moment when her voice breaks the third time she sings "murder".  Jagger felt the same, exclaiming "Woo!" right after, an exclamation left in the final recording.  This is Merry's song.

Forty five years later you can watch Merry (and Jagger) talking about that night, along with hearing her isolated vocal, which still sends chills down my spine all these years later.

Ty, Tris, And The Babe Write A Letter

  Imagine Babe Ruth, Ty Cobb and Tris Speaker, three of baseball's greatest players, writing you a get-well letter!  How did this come about and who was Ed Phelps of Albany, NY?

The letter was written on July 27, 1941 on stationary from the Hotel Carter in Cleveland, one of the premiere hotels of that city (now converted to low-income senior housing).  The three Hall of Famers were in Cleveland for an Old-Timers Game to be played the next day.  Here's a photo of the three on July 28.

As to Ed Phelps, he was a catcher who played for four National League teams between 1902 and 1913 (Pirates, Cardinals, Dodgers, Reds).  He had a modest career, mostly in a backup role.  Ed's moment to shine was in the first World Series in 1903 when he started all eight games.

After his baseball career ended Phelps returned to his native Albany region where he worked for the Delaware and Hudson Railroad Co.  In 1931 he was one of the founders of the Albany Twilight League where top amateurs could play on the beautiful summer evenings of upstate New York (games started at 6pm); a league that still exists.

How did the letter come about? Did Speaker, Cobb and/or Ruth know Phelps and, if so, how?  Phelps' career was in the National League while Ty, Tris and Babe were American Leaguers at a time when there was very little interaction between players in the two leagues.  In 1941 the 62-year old Phelps was battling stomach cancer.  Could a mutual acquaintance have reached out to Speaker, Cobb or Ruth with a request for an encouraging letter to a fellow former player?  I've run across nothing even hinting at the origins of the letter.

Ed Phelps survived another six months before passing on January 31, 1942.

Palatine

 Our word "palace" derives from the Palatine Hill, home of Roman emperors from the 1st through 5th centuries A.D.  The video below takes you on a leisurely one-hour walk over the hill, which is a jumble of Roman and later ruins and buildings.  Likely the home of the original settlers of the village of the 8th and 9th centuries B.C., the Palatine later became the prestigious home of Roman patricians during the time of the Republic.  The residence of Augustus Caesar was on the hill and even after he established the Principate in 27 B.C. he kept his (relatively) modest residence as part of the elaborate facade he created as "restorer of the Republic", though in truth the Republic had perished.  It was his adopted son and successor, Tiberius, who built the first true palace on the hill and by the end of the 1st century with the construction of the enormous Palace of Domitian, the emperors were the only ones allowed to build on the hill.

On its northeast side the Palatine overlooked the Forum, to the southeast lay the Colosseum and Arch of Constantine, while on the west it overlooked the Circus Maximus (and the palace afforded a direct connection to the stadium).  It was also serviced directly by an elevated aqueduct delivering fresh water from twenty miles away.

Even after the abdication of the last Western Roman Emperor in 476 A.D., the Gothic rules used the palace when visiting from their capitol of Ravenna, until the Byzantine reconquest of 537.  It was around this time that the aqueduct failed and without a reliable supply of water, the Palatine could not support a substantial population.  Over the next centuries, the palaces fell into ruin with the astonishing multi-colored marble facades being stripped for use in other buildings and the statutes removed.  For more on the later history read Belisarius Enters Rome.

The best time to visit the Palatine is early morning just after it opens or late afternoon which gives you the best chance of avoiding crowds.  Even in mid-day it is a relative oasis of calm amidst the usual frenzy, noise, and chaos of life in the Rome.  I particularly enjoyed visiting the Farnese Gardens in the morning and looking down on the Forum (you can see this very spot about 40 minutes into the video which is best watched in full screen).

A Remarkable American

Just learned Ed Bearss has passed at 97. A remarkable American. Severely wounded as a Marine fighting in the Pacific in early 1944, spending two years in hospitals and permanently losing use of one arm, Ed went on to a long career with the National Park Service, serving as its Chief Historian, and an even longer career as tour guide, author, lecturer, and preservationist. He appeared in Ken Burns Civil War series and for those fortunate to have undergone the Ed Bearss Experience he is one of those rare unforgettable characters you meet in life. From 2012 to 2015 I was on four Civil War battlefield tours on which Ed was one of the guides and was fortunate to host Ed twice and spend extended time with him on his last two visits to our Civil War Roundtable in Scottsdale.  The photo below was taken in January 2019 when Ed and I visited the Commemorative Air Force Museum in Mesa. With Ed is Dennis Fennessey, president of the museum.

It was on my first hosting tour with Ed that I drove him back and forth to Tucson to visit the Museum of the Horse Soldier.  During our four hours on the road I took the opportunity to ask him a lot of questions and once you got Ed started he really could get on a roll.  I learned he'd attended the first major league All-Star game in Chicago in July 1933 and we had a mutual love of baseball.  He knew every Secretary of the Interior since the Kennedy administration and had worked with Lyndon Johnson after his retirement in setting up the LBJ Ranch Historical Site (he also had a plethora of stories about LBJ which were hilarious and outrageous).  In response to my questioning he took me through his wounding at Suicide Creek on Cape Gloucester on January 2, 1944 and his two year sojourn in Australian and American hospitals.  I will never forget that drive.

Two stories from my battlefield tours:

The very first one was at Antietam.  Ed led the tour of The Cornfield, the site of brutal, bloody fighting on the morning of September 17, 1862.  At that point, I really didn't know who Ed was.  All I knew was that it was a hot, humid Maryland day and this old guy (he was only 89 at the time) was yelling at us (even Ed's whispering voice was booming) to stay hydrated.  Meanwhile I noticed that on our 3 hour tour around the field Ed did not take a sip of water!

Three years later at The Crater at the Petersburg battlefield, Ed, as usual, was moving very quickly ahead of most of us, turned around, admonished us keep up with him and warned that "stragglers will be shot"!

Ed's voice during his set pieces whether on tour or in speaking engagements has been described as a “battlefield voice, a kind of booming growl, like an ancient wax-cylinder record amplified to full volume—about the way you'd imagine William Tecumseh Sherman sounding the day he burned Atlanta, with a touch of Teddy Roosevelt charging up San Juan Hill.”  In a Washington Post piece listening to him was described as like hearing a Homeric bard.

On his last visit to Scottsdale, Ed overslept and I had to get access to his hotel room to wake him in order to make his early morning flight (Ed traveled alone).  Running so late I had to help him get dressed.  That experience gave me first hand knowledge of the extent of his wounds (a useless left arm and a right shoulder so damaged it had little strength) and I realized how long it must take him each day to get dressed on his own and marveled at the mental strength of this man who coped by himself, got through every day with no complaints, and why, in turn, he expected the best effort from everyone around him.

 

That Day

On September 11, 2001 I was in Rio de Janerio.  I'd left New York City on an overnight flight on Sunday evening to Brazil, traveling with a colleague on a business trip.  It was a trip we made once a year to review the environmental, health and safety performance of our South American operations. Tuesday morning found us in an aircraft engine maintenance shop in Rio when someone approached us and said a plane had flown into one of the World Trade Center towers.  From the description we assumed it was a private plane that somehow had flown off course.  A few minutes later another person told us the second tower had been hit and we knew it was not an accident.

We left the shop and were being driven to our next appointment in Petropolis, in the mountains about an hour from Rio.  This was in the days when I was not traveling with a phone with international calling capabilities but the person who worked for me in Brazil had one.  With his help I got ahold of Mrs THC who told me the towers had "fallen over", the highways into Connecticut, where we lived at the time, had been cleared so that ambulances could take the injured to hospitals in that state (sadly it turned out there were no injured), all airplanes in the U.S. were grounded and no one knew what was going to happen next.

Arriving at our destination, another GE plant, we continued on with our work.  There was nothing else we could do at that point.  We were due to fly out of Sao Paolo on Thursday night and carried through with our planned itinerary until then.  Everyone in Brazil was solicitous and sympathetic.  All we wanted to do was get back home but there was no way to do so.  It was frustrating to be stuck in another country when our country was under attack.  Even though our presence back in the U.S. would not make a difference as a practical matter, emotionally it created a lot of turmoil for us.  Our flight on Thursday night was cancelled and we waited at our hotel all day Friday for word as to whether that night's flight would go ahead.  Late that afternoon we got word that JFK was reopening, the flight would leave, and we went to the airport.

My thought had been the flight would be crowded given that the Thursday flight had been cancelled and the overnight flights to New York were always full but when we got on the plane it was only about 1/5 full.  I realized the only people on it were Americans wanting to return home and the usual crowd of tourists and South American business people were absent. The overnight flight was very quiet.  It was about 6am on Saturday morning when we began our approach to JFK in complete silence.  My colleague, who had a window seat, noticed a military jet had appeared off our wing and remarked that it must be there to accompany us in as protection.  I looked at the other wing, saw another jet, and told her they were actually there to shot us down if something went wrong.

It was only after we landed, entered the deserted Customs Hall, and spoke to the Customs agents that we realized we were the first international flight to land at JFK after it reopened.  It was the friendliest reception I've ever had coming into America from travel abroad.  The agent I dealt with said "welcome home, it's good to have you back".  It felt good to be home.

A limo picked us up to take us to Connecticut.  As we drove across the Whitestone Bridge I looked to my left and could see the Manhattan skyline.  The familiar profile of the World Trade Center towers was gone and there was still a noticeable debris cloud hanging above the island four days after the attack.

Knopfler Binge

This started out as simply a post of a concert version of Mark Knopfler's Brothers In Arms from the final show of his 2019 tour.  One of his finest and I never fail to be moved by his guitar with those fat tones, grace, and restraint.  While recognized as a superb guitarist he remains underrated as a lyricist.  Well, you know how it is venturing into the swamp of YouTube and I spent an hour watching and listening to Knopfler (and Dire Straits) so I've added a few more links to What It Is, Romeo & Juliet, Once Upon A Time In The West, Going Home (the theme from Local Hero), and the stunning closing solo on Tunnel Of Love.

Old Timers

September 8, 1930 at Braves Field in Boston.  There'd been a few "Old Timers" games in baseball before but nothing like this charity game.  And it was a game.  The Boston Braves were not playing that day and instead, taking the field in front of a crowd of more than 20,000, were teams made up of former Braves players and a collection of baseball greats from the past.  All proceeds from the game went to Boston Children's Hospital and the Professional Baseball Players of America Charity Fund.

Sixteen future Hall of Famers participated: Ty Cobb, Tris Speaker, Cy Young, Home Run Baker, Eddie Collins, Sliding Billy Hamilton, Bill McKechnie, Johnnie Evers, Fred Clark, Chief Bender, Harry Hooper, Ed Roush, Big Ed Walsh, Hugh Duffy and Roger Bresnahan.  Honus Wagner, the Flying Dutchman, was also present, though not in the photo.

Other well-known players also took the field including Bill Dinneen, Red Sox pitcher who beat the Pirates three times in the first World Series in 1903, 30 game winner Jack Coombs, Nick Altrock (the Clown Prince of Baseball), Smokey Joe Wood, 1914 Braves World Series star Hank Gowdy, and Bill Carrigan who led the Boston Red Sox to world championships in 1915 and 1916 as a manager,  catcher on the championship 1912 squad, and whom Babe Ruth called the best manager he played for.  The oldest "old timer" was Patsy Donovan, born two weeks after the assassination of Abraham Lincoln and who years later as baseball coach at Phillips Academy in Andover, MA tutored the young George HW Bush in the fine points of the game.

Before the game, Cobb was presented with a gold bat and painting.  In the photo below are Cobb (c) with Bill Carrigan, Nick Altrock and Fred Clark.


The game was a big event and was covered live nationwide on radio and the New York Times carried a full account the next day.

The Society for American Baseball Research has published an account of the game by Bob LeMoine:

Cy Young (age 63) took his place on the mound for Boston again.  After he pitched a scoreless first inning, Boston Old-Timers scored two runs in their half of the inning. Jimmy Collins singled, Duffy Lewis doubled, and they both scored on Freddie Parent’s double, which was misplayed by Ty Cobb. The All-Stars scored a run in the second inning as a single by Ed Walsh scored Edd Roush. They took a 3-2 lead in the third inning on hits by Fred Clarke, Eddie Collins, and Roush. Boston countered in its half of the third inning with a barrage of hits that scored Tris Speaker, Duffy Lewis, and Bill Sweeney to give Boston a 5-3 lead. The All-Stars cut the lead to 5-4 in the top of the fifth inning as Stuffy McInnis reached on a muffed fly ball by Harry Hooper and scored on a single by Jack Barry. Boston scored three more runs in the seventh inning for the final tally of an 8-4 win.

In the 21st century Old Timers Games have become extinct.  Too bad.

Too Much On My Mind

From The Kinks classic 1966 album Face To Face.  A song for our times.

Me Too

I miss the days when pitchers didn’t have all their individual identity coached out of them by age 12.

pic.twitter.com/F9WC8UGzNt

— Super 70s Sports (@Super70sSports) August 25, 2020

Luis Tiant in the 1970s.  That's Carlton Fisk behind the plate and Fred Lynn in center.  I watched him pitch in Fenway so many times in those years.  El Tiante belongs in the Hall of Fame.

I tried throwing like Tiant and learned how difficult it was.  Very hard to regain your focus on the plate after turning your back on the batter.

The Picnic

By Thomas Cole in 1846, who actually titled it Pic-Nic.

Remembering Tom

If you've been paying attention you know Willie Mays is my all-time favorite ballplayer followed by Big Papi.  Tom Seaver, who just passed at the age of 75, was not far behind.  Along with my Dad I became a Mets fan by default in 1962, though the Giants remained my favorite team.  We went to the Polo Grounds once and then to Shea Stadium many times (I saw Bob Gibson, Warren Spahn, Sandy Koufax, Don Drysdale and Juan Marichal pitch in that lousy ballpark).  I attended most of those games with Dad.  To avoid getting stuck in the Shea parking lot after the game, Dad would park on the street in Queens close to the nearest subway stop to Shea.  We'd grab a deli sandwich and then hop on a train to go to the ballpark. The Mets were terrible those first years but starting with Seaver's rookie year of 1967 they became a respectable club and then, of course, we had the thrill of winning it all in 1969.

Tom was just so so good.  The picture above is how I remember him, using his lower body to generate power, dropping his right knee so low it often dragged in the dirt.

I have special memories of two games late in his career.  In 1984 I saw Tom hurl a shutout in Comiskey Park during his stint with the White Sox.  On June 6 I made my first visit to that historic ballpark and watched Seaver put on a pitching clinic, yielding only four singles, walking no one and striking out eight, including Reggie Jackson three times, and winning 4-0 (and the game took only 2:13!).  As an extra added bonus another favorite player, former Red Sox Carlton Fisk, hit a home run.

On July 1, 1986 I was in Fenway to watch Tom make his debut with the Boston Red Sox, in what proved to be his final season.  When the trade and his first start was announced I knew I had to be there and got a ticket way back and up in the grandstands along the right field line.  Tom struggled giving up four runs in seven innings but it was a complete joy to watch him.

Here's a story Tom told sportswriter TJ Quinn:

"Did I ever tell you about the dinner I organize at Cooperstown every year?" he said once. "It's me, Sandy Koufax, Bob Gibson, Gaylord Perry and Warren Spahn. Sandy and Gibby are the only ones without 300 wins. You know what we call them?" He paused. "Our fourth and fifth starters."

Good memories.  Thanks, Tom.