"Judges are like umpires": John Roberts' Supremely Silly Simile

October 4th, 2018 Update: 2,400 plus law professors have signed on to a letter arguing that Judge Kavanaugh has not demonstrated the temperament necessary to sit on the Supreme Court. Apparently they do not believe Judge Kavanaugh is capable of being an umpire. 

"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire." --Judge John Roberts (from his September 12, 2005 opening statement during his confirmation hearings for the position of Chief Justice of the United States Supreme Court).

"A good judge must be an umpire--a neutral and impartial arbiter who favors no litigant or policy." --Judge Brett Kavanaugh (from his September 4, 2018  opening statement during his confirmation hearings for the position of Associate Justice of the United States Supreme Court).

As I write in late September, it's still not clear that Judge Kavanaugh will actually make it to the Supreme Court. In his September 27th statement to the Senate Judiciary Committee defending himself against sexual assault allegations, his willingness to attribute public exposure of the allegations to a range of conspiracies including "revenge on behalf of the Clintons" hardly sounded like someone who would be ready to assume the role of "neutral and impartial arbiter." Moreover his statement did not hold up very well to a fact-check, something that calls into question whether he should be a judge on ANY court, let alone the Supreme. 

A handful of Senate Republicans (Jeff Flake, Susan Collins, Lisa Murkowski) have not closed the door on voting against Kavanaugh if the limited FBI investigation of allegations against him fails to reinforce his version of events. So it may very well be that Kavanaugh's fate (and maybe even the Court's fate for the next generation) rests on whether these three senators have the courage to walk the talk. Don't count on it.

Given the way he's conducted himself at the confirmation hearings, and given his prior experience as a hyper-partisan lawyer for the Republicans, it almost seems pointless to examine Judge Kavanaugh's judicial philosophy. We all know that he was nominated only because (a.) there's a high likelihood he will be the 5th vote needed to swing the Court solidly to the right and (b.) he's expressed a view of presidential powers that protects the President from prosecution while in office. As Kavanaugh was not on Mr. Trump's original list of potential nominees, these reasons for his selection seem very likely.

So it does not look like Judge Kavanaugh would be a judicial umpire in the way he defines it, or that his supporters are concerned about anything other than that he vote the "right" way. But just for the heck of it, let's take a serious look at the "judge as umpire" metaphor. In the rest of this rant I will identity what is wrong with the umpire metaphor as applied to judges. I'll suggest another of way looking at judges ("judges as peer reviewers") that is not as simple as umpire but more in line with what a great judge really does and what we should really want in a judge.

So what's wrong with the umpire metaphor? 

First, the idea of judge as umpire suggests that a judge is mostly responsible for applying already existing rules in a fair manner so as to resolve conflicts between plaintiffs and defendants. That vision of a judge might have some utility in small claims and divorce court (although even there it's a very clumsy fit), but has almost nothing to do with judicial activity at the appellate level (including and especially at the Supreme Court). Appeals court judges don't just apply rules, they INTERPRET them, sometimes in a manner that transforms American society.

Second, historically the Supreme Court has been at its worst when it is dominated by "the judge as umpire" type justices. Such judges would agree with what Brett Kavanaugh wrote in a 2016 law review article: The "greatest moments in American judicial history have been when judges stood up to the other branches, were not cowed, and enforced the law." Sure such moments can include the Court ruling against Nixon in the Pentagon Papers, but more typically the "judicial umpires" have enforced the law in such a way that rejected as unconstitutional any legislative attempt to build a more perfect union. Think Dred Scott, separate but equal, and the Court's opposition to the New Deal in the 1930s--to cite just three especially horrifying judge as umpire moments. In each case, the judges stood up to and were not cowed by the other branches, and enforced the law. Suffice it to say those umpires blew some really big calls.

In 1896 the Supreme Court claimed only to be enforcing the law when they gave thumbs up to segregation in Plessy v. Ferguson. The 8 judges in the majority, who did not see it as their responsibility to remove racism from the law, were acting like judicial umpires. 

Third, the judge as umpire metaphor takes the judges "out of the game" in a way that is neither realistic nor desirable. In baseball, the rules state that players, coaches, and managers cannot argue balls and strikes with the umpire. If arguments are allowed over balls and strikes, then the umpires are subject to a range of persuasive tactics; each team would do whatever it takes to get the umpire to adopt their respective view of what the strike zone should be. In a real sense, the manager would work hard to get the umpire to be part of his team. So the "no arguing over balls and strikes" rule is designed to increase the chances that the umps are not unduly influenced by persuasive players, managers, coaches, and even fans.

In contrast, the entire purpose of a hearing before the Supreme Court is to argue over balls and strikes. The judges are "in the game" every bit as much as the Legislative and Executive branches. That is what we mean by "checks and balances." This is one reason why the so-called "originalist" theory for interpreting the Constitution is so problematic. To put it in terms of the baseball metaphor, the originalists (the late Antonin Scalia would be the best example) think that judicial umpires should adopt as their strike zone that which existed in the first official game ever played. In real baseball argument with an umpire who holds a fixed, traditional view of the strike zone is not allowed. In a courtroom setting, the essence of the proceedings is for all sides to argue the strike zone. That's why advocates for each side submit briefs to the court, and also why the Court allows oral argument. The Supreme Court justices are IN that game. That's why the best judges are those who listen well, recognize that their current understanding of the Constitution could be wrong, and are open to changing their mind when confronted with compelling evidence and legal argument. This is almost the exact opposite of what an umpire does, especially when we are talking about calling balls and strikes.

Finally, many real life judges recognize the limited value of the judge as umpire metaphor for understanding what judges do. Justice Theodore McKee's "Judges as Umpires" essay for the Hofstra Law Review is an excellent statement of the case against the metaphor. Here's just one example of one of Judge McKee's many spot-on statements:

"The [umpire] metaphor has become accepted as a kind of shorthand for judicial 'best practices' that obscures a complex dynamic that is far more amorphous, elusive, and troublesome than its simplistic appeal suggests."

Judge Theodore McKee of the Third Circuit Court of Appeals is one of many modern judges who recognize the inherent shortcomings of the judge as umpire metaphor. 

Consequences of a silly simile

Justice Roberts was not the first to use the umpire analogy to describe what judges do (see this essay for citations on the history of the analogy). Unfortunately Judge Roberts received much praise for the analogy during his confirmation hearings, mostly because it seemed to be a clear and concise way of protecting him--and the Supreme Court in general--against charges of being "activist." So any time a nominee for the Court wants to assure the public he or she is not activist, s/he merely need to resort to the "umpire" imagery. Pretty slick, eh?

Not only does the umpire metaphor protect some judges against charges of being activist, but it's also become a way of signaling to the President and Senate Judiciary Committee where one's loyalties lie. When Judge Kavanaugh framed his vision of judicial responsibility as being like an umpire, he was clearly telling the President and Republicans that he is on the side of Judge Roberts and the other so-called "conservative" justices on the Court. (After being nominated by President Obama, Elana Kagan in contrast to Kavanaugh overtly rejected the umpire metaphor during her confirmation hearings, a clear sign that she would be in sync with the so-called "liberals" on the Court).

What's most troubling is that the umpire metaphor has evolved (or perhaps de-volved) into a specific type of umpire judge. What hyper-partisans on both sides want (though it is clearly more aggressive on the Republican side) is a kind of "corrupt replay official" umpire. In modern Major League Baseball, the replay officials are umpires who sit in a booth in New York. When there's a disagreement over  a specific call at any game, the replay officials are called upon to watch the video and either confirm or overturn the call on the field. The replay officials take feeds from as many as 12 cameras, so they get numerous perspectives on the play.

A corrupt replay official would be one who decides the call without taking a serious look at all the camera angles. Isn't that what hyper-partisans on all sides want? In the 2016 campaign Donald Trump was clear that he would only appoint judges who would vote to overturn Roe v. Wade. That is, he wants the Court filled with corrupt replay officials.

When politicians say they want judges to be umpires, what they really want are corrupt replay officials. Baseball replay officials get to see a disputed play from 12 different camera angles. Imagine if a replay official had his mind made up before even looking at all 12 angles? That's exactly what hyper-partisan politicians want from the judges. 

A better analogy: judges as peer reviewers

Based on what's already been said, when a judge announces that he or she endorses the umpire metaphor for judicial action, red flags should immediately go up. "Judges are like umpires" is powerful in large part because of its simplicity and the way in which it communicates an aversion to judicial "activism." But as I hope I have demonstrated clearly in this rant, as a practical matter the umpire analogy has very little to do with the actual job of appellate court judges, and when taken to its extreme gives us the "corrupt replay official" that hyper-partisans want on the court.

I think a better analogy, though it admittedly lacks the simplicity of umpire, is the judge as peer reviewer. In academic circles, peer reviewers play a critical role in determining what counts as knowledge in particular fields of study. Peer reviewers determine if scholars who want to introduce NEW concepts into the field actually understand the OLD ones.

Let's use my field of Communication Studies as an example. A competent, ethical peer reviewer recognizes that s/he is helping to determine what communication "means." To that end, we would expect that a great peer reviewer:

*LOVES the field of Communication Studies.
*Is a recognized and respected expert in a specific area(s) of the field.
*Insists that scholars who seek to influence what is meant by communication observe the highest standards of rigor and integrity in their work.
*Expects that new scholarship will challenge her current understanding of communication.
*Has the intellectual maturity necessary to change his mind about communication when confronted with compelling evidence and argument for a new point of view.
*Views the relationship between scholars and peer reviewers as a collegial one rooted in the values of mutual respect and a shared desire to make sure that Communication Studies can help humanity reach its full potential.

Judges like peer reviewers are charged with determining what the Constitution "means." The greatest judges love Constitutional law, are recognized experts in at least one part of it, insist that advocates who come before them demonstrate deep grounding in the legal history of the dispute in question, expect that their own current understanding of the Constitution will be challenged, are mature enough intellectually to change their minds when confronted with compelling evidence and argument for a new Constitutional interpretation, try to create an atmosphere of mutual respect for all litigants, and ultimately stand for a desire to make sure that the Constitution is understood in such a way that upholds the essential equality and dignity of all human beings.

If we conceived of judges as peer reviewers in the way I've described it, I dare say the make up of the current Supreme Court would be quite different. The judge as peer reviewer would not necessarily be more "liberal," but she would certainly be more unpredictable--as are all people with deep intellects and open minds.

"Judges are like umpires." I hereby stand resolved that it is time to reject such a supremely silly simile.

Ocasio-Cortez, Shapiro, and Arguers as Lovers

In late June, 28-year-old Alexandria Ocasio-Cortez--a former Bernie Sanders for President organizer and self-declared democratic socialist--won the Democratic Party primary election in New York's 14th congressional district. She defeated Joseph Crowley, an establishment Democrat who political insiders thought had an opportunity to replace Nancy Pelosi as Democratic leader in the House of Representatives.

Not surprisingly, Ocasio-Cortez's victory sent the right wing into a frenzy. Sean Hannity calls her platform "downright scary." During his anti-Ocasio-Cortez rant, Hannity put on the screen her policies that are supposed to make us scared:

According to Fox's Sean Hannity, Alexandria Ocasio-Cortez's platform is "downright scary"

Wow, health care for everyone? I'm trembling. Support seniors? Frightening--I suppose we should just abandon them. Curb Wall St. gambling? Pure terror--let's just allow rich assholes to screw everyone. Seriously, we can and should have lively debates about the American democratic socialist platform, but to call it "scary?" In credible public opinion polls, almost everything on that platform has majority support among the population at-large (Medicare for All has the support of 70 percent of Americans), which is why Berniecrats have been doing well in elections across the country (Tallahassee Mayor Andrew Gillum's victory in the Democratic primary for governor of Florida was even more stunning than Ocasio-Cortez's).

The ascendance of progressive candidates like Ocasio-Cortez and Gillum does provide a golden opportunity--that will probably be missed--to have meaningful, civil argument over competing visions for the country's future. We've never really been good at public argument in the United States, but over the last 30 years a toxic mix of cable television idiocy and political tribes trapped in Internet echo chambers has pretty much eliminated even the possibility of such argument.

Last year in a Media Rant I blamed some of this pathetic state of affairs on the "eristic revival" championed by the late Fox News boss Roger Ailes. For the ancient Greeks the eristic was an "intoxicating" mode of argument rooted not in the civil exchange of ideas for the purpose of arriving at sound public policy, but in the desire to defeat and humiliate opponents. Actually if you watch any cable TV talking head panel on the Fox "right" or on the MSNBC "left," the participants (who comedian Michelle Wolf aptly refers to as the people who remind you why you hate to go home for Thanksgiving), really do seem intoxicated. They have the kind of "passion" you find in tavern arguments at midnight over politics, sex, or religion: half-baked ideas, trashing people not there to defend themselves, angry self-righteousness, glib stupidity, and often yelling for no good reason. At least after  a tavern clash a drunken fool might sober up the next day and apologize for his obnoxious behavior. On cable TV, not only is there no apology, but the fool keeps getting invited back for more!

The late Roger Ailes created a model of public argument on cable television that's got features of late night tavern battles over politics, sex, or religion.

When pundits who operate in the cable TV/Internet echo chamber framework challenge someone to a debate, the purpose is never to create a space for greater understanding of an issue. Instead, the purpose is to get the opponent on video opposite the pundit. Then, no matter what the opponent says, his or her comments will be digitally spliced and placed on echo chamber social media and other websites, where the comments will be characterized as the opponent being "owned," "trashed," or "put in her place" by the pundit. Go to YouTube and you can find literally thousands of clips of "debates" that have been cut and spliced in ways that make the debate participants appear to be saying whatever the cutter and splicer wanted them to say.

From the perspective I've put forth here, Ocasio-Cortez's rejection of an offer to "debate" right wing pundit Ben Shapiro makes complete sense. Mr. Shapiro, former editor of Breitbart News and now editor-in-chief of the Daily Wire, is probably best known for his attacks on the alleged political correctness dominating universities. He's a frequent guest on Fox News, but has also been on CNN, Bill Maher, and other mainstream programs. It also turns out that Shapiro, like Alex Jones and other firebrands on the right, actually uses his program to market dietary supplements.

After Ocasio-Cortez's primary victory, Shapiro joined the cable TV chorus, trashing her with  Hannity-like hyperbole. He then challenged her to a debate, even offering to pay $10,000 to her campaign if she would participate. Ocasio-Cortez likened the offer to catcalling. She tweeted: "Just like catcalling, I don't owe a response to unsolicited requests from men with bad intentions. And also like catcalling, for some reason they feel entitled to one."

Do a search of videos featuring Mr. Shapiro, and you will find that Ocasio-Cortez's claim of "bad intentions" is not entirely unfounded. As I suggested earlier, if Ocasio-Cortez were to take the stage with Shapiro, it would not matter what she actually says. Instead, her comments would be blown up, taken out of context, cut, spliced, and labeled in a manner to reinforce the right's pre-existing view that she's a dangerous radical whose ideas were "demolished" by Shapiro. Such a debate would add very little to our understanding of public policy issues, in large part because the echo chamber surrounding Shapiro really has no interest in understanding. Understanding public policy is hard and does not generate tons of clicks. But the eristic battle--"demolishing," "putting in place," "owning"--because it has more in common with Hulk Hogan v. the Rock than it does with Lincoln v. Douglas, is what a Shapiro requested "debate" becomes.

How do we get out of this mess? We need to rethink "argument." A good starting point is a classic essay from my field of Rhetorical Studies, published in 1972 by professor Wayne Brockriede. The essay, titled "Arguers as Lovers," was itself a response to the dysfunctional argument culture of the late 1960s and early 1970s, a time when public debate was moving toward the war-like quality that ultimately became the norm with cable TV and the Internet.

Brockriede presented three stances that arguers can take in relation to other arguers: the arguer as rapist, the arguer as seducer, and the arguer as lover. (Professor Robert Gass presents the stances as "abuser," "manipulator," and "equal").

Professor Wayne Brockriede's 1972 essay on "Arguers as Lovers" was looking for a way to articulate what should be considered "genuine" argument. 

Much of what we call public argument today features what Brockriede called the rapist or seducer stances. In those argument stances, the arguer's opponent is not a person as much as an object. Verbal aggressiveness, trickery, willfully distorting information, and other linguistic control mechanisms are all part of the rape and/or seduction framework. These argument metaphors are, sadly, almost perfect descriptors of what's happened to public argument in the social media age. Hyper-partisans on the right and left now argue almost exclusively within the bounds of the rape/seduction stances, though what's called "conservatism" today is the worse offender (as former Dean of Wisconsin right wing radio Charlie Sykes puts it, modern conservatism is now little more than trolling of liberals. Trolling is similar in form and impact to what Brockriede called the rape stance.).

Brockriede preferred a higher standard for arguers, what he called the arguer as "lover." The arguer as lover sees his or her opponent as an equal. For arguers as lovers, creating and maintaining a relationship between the opponents is as important as the outcome of the argument contest. In fact, arguers as lovers do not even see themselves as "opponents" as much as equal partners participating in problem solving. And very critically, in argument as love each participant starts off with the assumption that he or she CAN BE WRONG and might have to CHANGE HIS/HER MIND in the presence of an argument supported with compelling evidence.

Is it too naive to think that we could actually move toward an arguers as lovers model in the United States? It is true that the odds of argument as love happening on cable TV or the Internet are remote. The Ben Shapiros of the world, and others on the right and left performing more severe or milder forms of verbal rape/seduction, are lost causes. The best we can do as regards those folks is make sure our children learn how to do media criticism at the earliest possible age, so they can recognize all the attempts made to objectify them and make them easy prey for clickbait provocateurs.

On the other hand, there is evidence that Americans at the street level, in their own communities, are practicing argument as love. A recent article by Idaho based writer Gracy Olmstead in the New York Times on the movement toward "localism" showed how seeking community with those who live closest to us might be an antidote for the nastiness as the national level. Olmstead I think is spot on here:

If citizens turn off cable news and instead step outside their front doors, seeking to care for their communities, they may help fight back some of the anger that has fractured our politics. For those who volunteer together at a local soup kitchen, homeless shelter, Rotary Club or Boy Scout troop, national battles matter much less than local, tangible needs.

Rediscovering our communal identities will require unplugging from our devices and returning to the local institutions that used to facilitate a “center,” like school boards, church soup kitchens, town hall meetings and libraries. Disappearing bipartisanship may be rediscovered, as the journalist Sarah Smarsh puts it, “in direct communion, sharing a mission.”

Localism is not a perfect cure for national division, and cannot serve as a full replacement for national politics in a globalized era. But at a time in which many Americans feel disenfranchised, disillusioned and defenseless, its empowerment may act as a sort of balm.

Debate is a vital part of a healthy, functioning democratic culture. But debate that's rooted in rape/seduction argument stances and eristic displays that generate web clicks is actually more harmful to democracy. If we're going to see change at the national level, we have to first change the way we argue among ourselves in our communities. There are some hopeful signs on that front, but each of us needs to pledge to do more and be better.

Wisconsin Elections: A Cure For Lazy Journalism

Wisconsin Residents: Did you know that August 14 is primary election day in Wisconsin? Did you know that on that day voters will be choosing candidates for Governor and United States Senate for the establishment political parties (Democrats and Republicans) and third parties? Did you know that in Wisconsin you can only vote in ONE party primary? (i.e. If you want to vote for a Democrat in the crowded field for Governor, you CANNOT then vote for a Senate candidate in the Republican primary.). Do you know who are the candidates running in each party primary? If you know at least some of their names, do you know what they stand for?

If you vote in the Democratic Party primary on August 14, 2018 these are the candidates. Do you know their names and what they stand for? Has mainstream journalism helped you get to know the issues and where candidates stand on them? 

Over the years I have found that even people I consider to be "politically aware" answer "no" to many of the above questions, or at best offer up a lukewarm "yes." High numbers of uninformed or under informed voters is a sign of civic distress. Such distress is not a new phenomenon, but it's arguably gotten much worse over the years. There are many reasons why, but given that this is a "media rants" blog, I only feel qualified to comment on the role of the political journalism. To put it bluntly, political journalism in Wisconsin--by which I mean the reporting and editorializing produced by the establishment, corporate media that reaches the largest number of readers/viewers/listeners--does not cover elections in our state in a way that provides meaningful information and commentary capable of provoking increased voter participation. In a word, the quality of journalism concerning elections in Wisconsin is LAZY. (It's also vapid, scandal obsessed, and privileges "insider" views--but those are all byproducts of the laziness.).

I'm going to suggest a cure for lazy campaign journalism, but first let me clarify what I am NOT saying. I am not saying that establishment journalists are bad people who purposefully dumb-down campaign news coverage so as to benefit the anti (small-d) democratic forces that rule Wisconsin. Most journalists are well meaning and do their jobs as best they can given the real institutional constraints they face. Chief among those constraints are the lack of resources dedicated to news gathering/investigative reporting and the fear of offending advertisers--factors that completely frustrate any kind of "outside the box" style of journalism.

Lazy political campaign journalism typically centers around the following boilerplate themes:

*Which candidates have the most money?
*Which candidates have the potential to raise the most money?
*Who's ahead in the Marquette poll?
*Who's ahead in any other reputable poll(s)?
*Who won the Convention straw poll?
*Should only candidates with large campaign bank accounts be invited to debates?

There's also an obsession with anything even remotely scandalous in candidates' backgrounds; usually just an accusation from an opposing candidate or opposing party spokesperson is enough for the "scandal" to get coverage. And critically, campaign journalism is sourced almost entirely by political insiders with some kind of vested interest in the story angle.

Note that the boilerplate themes tell readers/viewers/listeners almost nothing worth knowing about the election or the candidates. This year the journalism has been excruciatingly bad, which is especially tragic given that the Democrats had so many qualified candidates enter the race. We're heading into the August 14th primary knowing primarily that: Tony Evers leads in the polls, only four of the Democrats running for governor will probably be able to raise the funds necessary to compete against Scott Walker, Democrat Matt Flynn has been under pressure to withdraw from the governor race because some victims of priest abuse claim that Flynn was unethical in his performance as an attorney for the Milwaukee archdiocese, the one viral video of primary season features Democrat Kelda Roys nursing her infant child, and that Scott Walker is one of the most unpopular incumbents in the country. Really gets you fired up to want to work on a campaign, eh?

Spattered throughout the products of lazy journalism are candidates views on issues, but that is typically an afterthought. Moreover, the explanation of the issue at hand is either absent or not sufficient, so that the independent voters (who are the majority) cannot really be sure what a candidate being "for" or "against" something actually means. Later in this post I will suggest that the initial months of campaign coverage should say almost nothing about the candidates and instead just provide in-depth examinations of the major issues facing the state, the incumbents' records on those issues, and the competing policy options. That way, when the media finally does get around to covering the candidates, their views on issues might actually make sense.

Let me provide just one example of the kind of journalism I've been critiquing. In July of 2017 Milwaukee businessman Andy Gronik announced that he would be seeking the Democratic Party nomination for governor. Like most voters, I knew absolutely nothing about Mr. Gronik. The Capital Times' coverage of his campaign announcement was typical: In the story we learn that Gronik sent out a fundraising email critical of Scott Walker, that Walker and Lt. Governor Kleefisch have over 3 million dollars on hand, that Gronik wants his supporters to contribute $5 or more in a grassroots fundraising effort, that the Republican Party of Wisconsin filed an Ethics Commission complaint against Gronik (for reasons that are not clear) over the way he handled a political nonprofit that he created. The story was later "updated" to clarify that the Commission had dismissed the complaint. The story includes a quote from Republican Party spokesperson Alec Zimmerman, who calls Gronik an "out-of-touch con artist." The story does include Gronik's rationale for running and his stands on some issues, but the overriding theme is that he's trying hard to raise money while the Republicans claim he is out-of-touch and possibly corrupt.

Milwaukee businessman Andy Gronik was an example of a candidate victimized by lazy journalism. Early coverage of his campaign focused mostly on his prospects for fundraising and baseless GOP cheap shots at him. Like most candidates, he was forced to find some kind of gimmick to generate attention; at the GOP convention in Milwaukee Gronik showed up with a rolling billboard critical of Scott Walker. 

If you search the Wisconsin media for stories on all the candidates entering the race for governor, you will find all of them meet the same basic pattern. The candidate's prospects for raising money, the candidate's reason for running, and the cheap shot from operatives in the opposing camp. I struggle to try and understand how any of these stories help me as a voter. Am I supposed to be impressed that a candidate has money or a slick way of raising it? Are put-downs from political hacks on the other side supposed to have any credibility?

That last point--allowing political hacks to get in a free cheap shot at a candidate--is one of the real defining characteristics of lazy political journalism. My guess is that the reporters and their editors allow it out of some twisted sense of "balance" and/or fear they will be accused of a "liberal bias" if they don't do it. But whatever the reason, the end result is to put every challenger on the defensive before they even have a chance to begin campaigning. So here's what the Republicans were given space to say about each of the major Democratic Party candidates for governor in stories that announced their campaigns:

*Mike McCabe: A "phony" who led an organization that took money from billionaire George Soros.
*Tony Evers: Stands with teachers who circulate porn in schools.
*Mahlon Mitchell: A "union boss" who protects big government special interests.
*Matt Flynn: A "dirty defense attorney."
*Kathleen Vinehout: Authored one of the biggest tax increase proposals in state history.
*Kelda Roys: Too liberal even for Madison.
*Paul Soglin: Extreme liberal who wants to take our state backwards.

Of course political hacks are free to take cheap shots at anyone. My point is that there is no good reason--journalistically or ethically--to privilege their cheap shots in stories that purport to be informing us about why a candidate is seeking office. In establishment newspapers, the political hacks ought to have to write letters to the editor to get their word out, and be subject to the most rigorous fact checking possible. On television and radio there is no good reason to include hacks as part of coverage, as all they do is sow division and create confusion. Mainstream media ought not enable that kind of nonsense, no matter what side of the political spectrum it is coming from.

A Model for Covering Campaign Season: Maximize Voter Education, Minimize Political Hackery

Suppose the establishment media woke up one morning and decided to cover campaign season with a sense of journalistic integrity and civic responsibility. What would that look like? Anyone who approaches this topic seriously has to come to the conclusion that responsible campaign journalism would at a minimum do two things: (1) maximize voter education and (2) minimize political hackery. Currently political journalism is hack driven; it relies on dueling press releases from self-serving parties, the major consequences of which are to dumb down coverage and reinforce the already existing sense of cynicism most people feel toward politics AND journalism.

An alternative model consists of three stages of campaign coverage:
1. The pre-primary stage.
2. The primary season stage.
3. The general election season stage.

I am especially interested in races for governor, but the model can also be applied to presidential, US Senate, state legislative races, constitutional offices (Attorney General, Treasurer, etc.), and even local races. The model really doesn't require that news organizations spend any additional money or hire more journalists (although that would be nice.). All it really takes is establishment media owners and editorial staff having the guts to ASSERT INDEPENDENCE from the political hacks that seek to control the way candidates and issues are talked about, and to DECLARE ALLEGIANCE to (small-d) democratic principles and meaningful civic engagement.

Stage One: Pre-Nomination Signatures

In Wisconsin, as in most states, candidates for governor do not officially get on the primary ballot until they submit a required number of signatures. In 2018 the candidates had until June 1 to submit the required number of signatures to get on the August 14th primary ballot. Before that June 1st date, literally anyone could have announced an intention to run for the office. Indeed on the Democratic Party side, by early 2018 there were close to twenty candidates declaring an intention to run. Even though it should have been clear that not all of these candidates were serious, and that not all of them would get the required number of signatures necessary to be placed on the ballot, the establishment media covered them all essentially the same--using various versions of the boilerplate themes mentioned above plus the obligatory cheap shot from a GOP hack. This mostly nonsensical coverage mostly benefited incumbent Governor Walker, as he and his operatives were able to deploy the narrative of a chaotic Democratic Party unable to unify around anything other than dislike of Walker. There seemed to be an assumption in all of this coverage that the typical voter (a.) knew something about the issues mentioned by the candidates in their statements as to why they were running, (b.) knew Governor Walker's positions/actions on those issues, and (c.) understood that there were multiple options for dealing with those issues.

Allow me to suggest that before the nomination signatures are due, there really should be very little coverage of candidates. If establishment newspapers, TV, etc. want to provide links to candidate websites and social media handles, that's fine. Let the hyperpartisan websites, blogs, and social media carry the candidate hackery at this point in the election season. For media that reaches large numbers of voters, the pre-nomination signature stage ought to be less about candidates and more about voter education. That would include:

*Foundational stories about the ABCs of voting: how and where to register, obstacles to voting (voter ID, change of address, etc.), offices that will be on the primary and general election ballots, requirements for voting in a partisan primary, etc. For political junkies, this kind of coverage almost seems "common sense," but that is because such junkies inhabit bubbles occupied really by only a small number of people. Talk to average, everyday people in your neighborhood and you will find that there is widespread confusion out there about the ABCs of voting. For stories on the ABCs of voting, mainstream media should partner with nonpartisan good government groups like Common Cause in Wisconsin to get out the most current, accurate information about how to vote. 

*In-Depth Coverage Of Issues: This would be the most critical part of pre-nomination signature coverage. Wisconsin's budget is driven by six main funding areas: K-12 education, health coverage, road construction, state aid to local government, prisons and the criminal justice system, and the University of Wisconsin System. In the pre-nomination signature stage, we should be treated to rigorous journalism telling us what the current level of funding is for each area, how the funding has changed over time, how Wisconsin compares with other states, and as much nonpartisan, independent analysis as possible.

In addition to the budget drivers, election coverage at this stage should focus on other issues identified by voters as important. The Marquette Law School Poll or the St. Norbert College Wisconsin Survey would be suitable, reliable sources from which to identify issues that mainstream media could then explain in more depth. Those issues for 2017/2018 include:

*Tax Reform
*Marijuana Legalization
*The Opioid Crisis
*Gun Control
*Raising the Minimum Wage
*How to Handle Wisconsin's Worker Shortage
*Wisconsin's Shrinking Middle Class
*Should we Restore Collective Bargaining
*Environmental Protection
*Campaign Finance Reform
*Rural Broadband Access
*Human Trafficking
*Racism
*Police Reform

If in the  pre-nomination signature stage the media covered the election in the manner I am suggesting, the candidates who most benefit would be those doing what candidates should be doing at that point: traveling the state, meeting voters in local town halls, shaking hands door-to-door, communicating with county political parties, and everything else associated with grassroots politics. They would be freed from the pressure of finding some kind of gimmick to get media coverage, because the media would have made it clear that they are not interested in gimmicks. They would even be freed from the obsession with fundraising, because the kind of media coverage I have in mind will ultimately privilege ideas and hard work over "connections" and ad buys.

Stage Two: The Primary Season 

In Wisconsin in 2018, this stage would have started on June 1st (the day nomination signatures were due) and ended on August 14 (the date of the primary election.). During this stage we know exactly who will be on the ballot. Media coverage should do the following:

*Provide in-depth biographies of candidates.
*Interview candidates and get their views on each of the issues mentioned in Stage One.
*In races where there is an incumbent (such as this year's race for governor and the race for US Senate), provide clear information about what the incumbent has done on each of the issues presented.
*Organize each candidate's positions on a chart where they can be listed side-by-side against all the other candidates on the ballot. For newspapers, print the chart every day leading up to the election and/or make it easily available on the website. For television, radio, and other media, make sure your viewers/listeners know how to get access to that chart.

During this stage of the campaign there will of course be town hall forums, debates, and other events where candidates get to share their views. Should any candidate deviate from the positions they have already taken (as pointed out in the issue chart), good journalism should expose that. Voters need to know if a candidate panders to different audiences or in any other way walks back from the position s/he has already taken. 

Notice that in both Stage One and Stage Two,  there is NO ROOM AT ALL for political operatives and other cheap shot artists who want to dumb down the election to benefit their side. The operatives are free to send letters to the editor, troll media websites, pollute political blogs, etc., but they CANNOT be allowed to continue to frame the coverage of the campaign season if we want to have any kind of integrity in our politics.

Notice also that media coverage as envisioned here has no interest AT ALL in how much money a candidate has raised. If she or he has gotten enough signatures to be on the ballot, that's enough to warrant serious coverage by the media.

Finally, if mainstream media insist on covering polling data, it should only be after Stage Two coverage in which each candidate has had the opportunity to have his or her views stated fairly and in comparison to other candidates. I daresay that if we had this kind of media coverage model in place, Andy Gronik and Dana Wachs (candidates who dropped out because of low poll numbers) would still be in the race.

As with Stage One, Stage Two media coverage largely benefits hard working, grassroots candidates willing to get out and make his or her case directly to the voters. 

Stage Three: The General Election 

The results of the August 14 primary will determine the nominees for each party. At that point the mainstream media should do anything possible to make sure that all the voters of the state get an opportunity to hear the candidates. Mainstream media should work with the League of Women Voters to facilitate one debate between the candidates in EACH of Wisconsin's congressional districts. That would guarantee that the issues of concern to ALL the state's residents--urban and rural--would get a fair hearing. Establishment media should come to an agreement that if a major party candidate refuses to participate in at least one debate in each congressional district, that lack of participation will be reported widely and repeatedly all the way up to election day. 

Candidates for governor and United States Senate should have at least one debate in EACH of Wisconsin's 8 congressional districts. That would help increase the chances that the needs of ALL the state's residents get addressed. 

During the general election season, it is common for candidates to hurl accusations of corruption or unethical behavior at each other. Typically, just the ACCUSATION is enough to get an above-the-fold headline or the lead story on the evening news. In the model I am proposing, corruption/ethics accusations will undergo the highest level of journalistic vetting and scrutiny before being reported. It's not right that a candidate could lose an election because of an "October Surprise" that later turns out to be bogus. 

Conclusion: The Urgency of Reform 

It's hard to exaggerate how badly we need to reform election coverage journalism. There seems to be a clear and disturbing correlation between the low quality of journalism and the low voter participation in elections. The issues facing our state and nation are too serious to continue tolerating the civic distress brought on by the toxic combination of special interest candidates, lazy journalism, and low voter turnout. 

I don't pretend that my reform suggestion is perfect or can be easily implemented in an environment where political journalism has been stuck in a mediocrity rut for an entire generation. My hope is that what I have proposed can at least start some conversations among the powers that be that control mainstream news in our state. I honestly believe that the kind of journalism I am proposing would greatly increase digital subscribers for newspapers that do it, so they could avoid the pathetic threats to hide their content behind a paywall unless you pay up. 

If you think the current election season journalism is okay or the best that can be done under the circumstances, fine. But please don't act shocked when voter participation continues to plummet, and people we elect continue to place the needs of well-connected special interests above The People. 

Eric Burdon's 1968 Rock Gospel Against Empire

During Donald Trump's ascent to the White House, his presence on television was as in-your-face and irritating as lake flies in spring (only people who live around Lake Winnebago, WI will have any idea what that means.). When I watched Trump on TV back then, what immediately came to mind were lines from "No Self Pity," one of my all time favorite songs by Eric Burdon and the Animals: 

And no matter how low you are
There is always somebody lower . . . 
And no matter how dumb you are
There is always somebody dumber . . .

That song is from the 1968 album "The Twain Shall Meet," a recording much overlooked for two major reasons. First, the album competed for attention with releases by the Beatles ("The White Album"), Jimi Hendrix ("Electric Ladyland"), The Rolling Stones ("Beggars Banquet"), Cream ("Wheels of Fire"), and others whose songs that year became staples on FM album oriented rock radio stations for many decades. 

Second and less obvious is that "The Twain Shall Meet" is one of many 1967 - 1970 recordings that over the years became marginalized as primarily "psychedelic," hippie-era opuses. In other words, for the corporate guardians who decide what we get to hear on radio--and who decide how rock and roll will be defined in "official" writing about the genre--an album like "The Twain Shall Meet" represents not much more than "Eric Burdon's drug phase" or a period piece that allows baby boomers to look back with gleeful nostalgia at the glory days of acid dreams and sexual freedom. 

Make no mistake: the LSD inspired, hippie movement fingerprints on "The Twain Shall Meet" are as obvious as the graffiti on New York City subway trains. You have to be willfully obtuse to miss it. But to state that fact does NOT mean that the values expressed on the record are naive, irrational, or not worth considering as an important early stride in the CONTINUING and VITAL effort to expose and transform the consumerist, military-industrial-complex culture excesses that have left too many spiritually empty and all too eager to sacrifice meaningful human engagement for the thrill of a digital technology induced dopamine rush. To challenge those excesses does not mean that you are or have to be a hippie. Likewise, for the challenge to those excesses to come from a 1960s era rock album ought not make the challenge any easier to ignore. More from "No Self Pity": 

Modern day structures are fantastic 
But have you seen a butterfly's wings? 
Man has created symphony 
But have you heard a blackbird sing? 
Man can make sweet red wine 
But have you tasted a mountain stream?
Hollywood has created movies 
But listen to the color of your dreams 

With record numbers of people addicted to their smart phones, why on earth would we want to keep those lyrics stuck in 1968? There's a temptation to say, "oh, those words were just the LSD talking," with the implication being that you somehow have to be stoned in order to have any kind of appreciation for sensory awareness, nature, and being present in the moment. Somehow to be "sober" means to suspend any hope that love, tolerance, peace, understanding, and other "hippie" values can have any real force in our lives. If being sober means having to reject real love, then it's no wonder so many would rather be stoned. 

The Twain Shall Meet: A Rock Gospel Against Empire

Eric Burdon and the Animals' "The Twain Shall Meet" really is not a great album in the way "great" albums are typically understood. It does not include an abundance of "catchy" songs, the production quality is sloppy in places, the playing of the instruments does not inspire awe (with the exception of Danny McCulloch's bass playing, which is outstanding throughout), the lyrics are sometimes more obscure than necessary, and it does not show up on lots of "best of" lists. The album did break into the Billboard top 100 for a few weeks in 1968, but that was largely on the strength of the songs "Monterey" (a timely celebration of the 1967 festival that introduced the world to Jimi Hendrix and other legends of the era) and "Sky Pilot" (a protest song that was appreciated by the growing anti-war movement of the time.).

To be frank, I didn't make much of this album myself when I first became aware of it around 1976 or so (I was too young to fully appreciate rock music in 1968). By 1976 the late 1960s era artists were fading, and a range of new genres were gaining currency (soul, punk, disco, new wave, early hip hop, etc.). More troubling, by 1976 FM radio was abandoning its original mission to serve as a space for the expression of counterculture values through music and discussion, so like millions of youth I really had no one to educate me about the meaning(s) of rock and roll. It wasn't until years later, when I discovered that the album title "The Twain Shall Meet" was a pun off of Rudyard Kipling's line "Never the Twain Shall Meet," that I took renewed interest in the record. 

Depending on who you talk to, Rudyard Kipling the poet and novelist (1865 - 1936) was either an overt racist apologist for European/American imperialism or, as the late Christopher Hitchens argued, a man of "permanent contradictions" whose work paradoxically supported colonialism at the same time presenting an "exaltation of the common man." 

Is Eric Burdon and the Animals' "The Twain Shall Meet" a response to Kipling? Listen to the album and judge for yourself.

Regardless of who is the "real" Kipling, there is no doubt that he was the unofficial poet of the British Empire whose works were widely seen as a celebration of the Western attempt to "civilize" the East. Eric Burdon appears to have been taken with Kipling's poem "The Ballad of East and West" (1889), which includes the line "Oh East is East and West is West, and never the twain shall meet." (This would not be the only time Burdon would pun off of Kipling. With his band War in 1970 he released "The Black Man's Burdon," a twist on Kipling's jingoistic and pro-imperialist "White Man's Burden" [1899]). 

My reading of "The Twain Shall Meet" is that, in the anti-establishment style of peace-loving hippies, it is a challenge to all the vestiges of empire: white supremacy, hyper nationalism, mindless patriotism, war, and the destruction of nature. It is significant that Eric Burdon himself hails from Newcastle upon Tyne, the northeast England working class industrial center that survived German air raids in World War II. Newcastle's "Geordies," like the working poor in the United States and indeed all over the globe, were/are ultimately the main domestic victims of the greed of the empire builders. Yet instead of giving us a kind of Bruce Springsteen/John Mellencamp "celebration" of the working class--a celebration that situates working class consciousness as a fixed and permanent part of the human condition--Burdon's "The Twain Shall Meet" seeks to transcend all class consciousness. If Kipling was a poet for empire builders, Burdon circa 1968 was a poet for the empire wreckers. The best way to wreck the empire, the album says to me, is to emancipate your mind from its allegiance to empire values. (In that sense the album is very Bob Marley-esque).

"The Twain Shall Meet" could have been called "The Gospel of Eric Burdon and the Animals." The opening track, "Monterey," starts off with Burdon whispering "In the Beginning" as if we are about to be introduced to a new creation myth. And in a sense we ARE introduced to a new creation myth: "Monterey" celebrates the famous "summer of love" music festival as a multicultural mix of peace-loving youth creating such an overwhelming space for love that "even the cops grooved with us." Monterey in a real sense gave birth to the counterculture. 

On the orignal vinyl album all the songs ran into each other, which enhanced the sense that all the tunes were part of one bigger story. Bassist Danny McCulloch penned and sang two songs on side one ("Just the Thought" and "Orange and Red Beams"). Both have a kind of acid trip vibe to them, though "Just the Thought" comes off like a warning to all who would strive for the empire's definition of success: 

As I play I see me winning
And I gain what's called self-pride
And I turn around with a smiling sigh
See a flower that has died
I feel a change, another change
Another game, I will have learnt

If there is a masterpiece on "The Twain Shall Meet," it would have to be "Sky Pilot," the epic anti-war tune. A "sky pilot" is a military chaplain. In the song the sky pilot is a "good holy man" who glibly sends young soldiers off to war. Burdon's sky pilot is the Rudyard Kipling figure whose job it is to indoctrinate the servants of empire: 

The fate of your country is in your young hands
May God give you strength
Do your job real well
If it all was worth it
Only time it will tell

For me, Burdon's "Sky Pilot" was a stand-in for Kipling, and the song a not-so-subtle "Fuck You" to all those who enable war. Since 2001 in the United States we've had ample numbers of sky pilots gleefully sending men and women off to ill-defined battles. No surprise "Sky Pilot" has pretty much disappeared from FM radio over the last decade. 

The last song on "The Twain Shall Meet" is "All is One." Bruce Eder in an AllMusic review says the song "is probably unique in the history of pop music as a psychedelic piece, mixing bagpipes, sitar, oboes, horns, flutes, and a fairly idiotic lyric, all within the framework of a piece that picks up its tempo like the dance music from Zorba the Greek while mimicking the Spencer Davis Group's 'Gimme Some Lovin.'" 

I'm not sure why "We are one/your neighbor is your brother" would be deemed idiotic. In fact the widespread outrage to the Trump Administration's cruel and family unfriendly immigration crackdown is in a sense deeply rooted in the humane premise that we ARE all one regardless of borders. But Eder is certainly correct that the piece is unique even by the high creative standards of sixties progressive rock. 

Eric Burdon's entire career in music has been about lifting people up, which is why I reject attempts to marginalize "The Twain Shall Meet" as merely being part of a hippy "phase." As Burdon himself says on his website: 

The music I love was created by the sons and daughters of slaves. My life's work has always been about honoring those people who suffered and thus, created a language of peace and salvation through music. Everything we believed in during the 60s, everything people fought and died for, is being jeopardized today.

Eric Burdon's rock gospel against empire is as vital today as it was in 1968. Probably even more vital given the overt and disturbing trends toward fascism across the globe.