Will The Supreme Court Keep Kosher And Halal In The Hobby Lobby/Conestoga Wood Cases?

How many specious hypotheticals, willful misprisions of existing law and recent Court decisions, and frightening parades of horribles can fit inside of 90 minutes of oral argument at the Supreme Court?  A great multiplicity, as we found out last Tuesday, March 25, when the Court heard arguments in the consolidated Hobby Lobby and Conestoga Wood cases.

According to the editorial writers at The Wall Street Journal, “the real purpose of the [so-called contraceptive] mandate was to minister to the secular left and the so-called coalition of the ascendant.”  For the WSJ, “liberal justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn’t it also refuse to pay for blood transfusions or vaccinations?  ‘Could an employer preclude the use of those items as well?’ asked Justice Sonia Sotomayor….Yet no one is ‘precluding anything.  Contraception is cheap, plentiful and covered by most health plans.”   Taking the WSJ editorial board’s assertions (“Obamacare vs. Religious Liberty,” 3/25/14) in turn: they begin by assuming bad faith on the part of the lawmakers and regulators, resorting to slander rather than actual argument; second, the contraceptives involved are not regarded as abortifacients either by federal law or authoritative medical judgment; third, there is no limiting principle in their reasoning–or the reasoning of Paul Clement, the lawyer who argued on behalf of Hobby Lobby and Conestoga Wood–against extending the rights of natural persons to artificial entities for whom life begins at incorporation but “who” enjoy limited liability, not personal accountability before G-d; fourth, there is a significant upfront cost, as Solicitor General Donald Verrilli pointed out in response to an ill-informed question by Justice Scalia, for the IUD, which millions of American women use and which, as Verrilli noted, may be sincerely regarded as causing abortions by the corporate owners–notwithstanding, their sincerity should not control the legal outcome of the case if their beliefs contradict medical opinion.

Justice Kennedy, as often happens, looks like the swing vote here.  He showed concern that the government’s logic could in principle lead to forcing for-profit corporations to pay for abortions–though as Verrilli pointed out, that hypothetical worry is not consistent with any current laws, which force no such thing.  However, Kennedy did also express concern that the rights of employees–the women who rely on birth control coverage as part of their health care plan–could be threatened by a ruling in favor of the corporations.  (The Balkinization blog has several detailed posts on this issue.)

Regarding Justice Alito’s hypothetical (based on a recent law in Denmark) suggesting that the government’s position could lead to kosher and halal slaughterhouses having no legal recourse to defend their free exercise and First Amendment rights, I can only say that although I abhor the false flag attacks on women’s autonomy perpetrated by Justices Alito et al., I will defend to the death their right not to be “stunned or rendered unconscious” before they make their way into the Supreme Court chambers to make their preposterous and tendentious assertions.

The three female justices raised questions that highlighted the real burdens women employees (and there are thousands of women employed by these companies, which though closely held are by no means mom-and-pop operations) would face if the Court were to rule against the government and for Hobby Lobby/Conestoga Wood. It’s likely up to Anthony Kennedy to decide whether such corporate burden-shifting should be allowed in the face of what seems to me a neutral and generally applicable law designed to promote public health.  And whether the purportedly religious arguments for heteronomous control over women should prevail.  The Affordable Care Act may offend some religous consciences but is two or three degrees of separation away, in my opinion, from imposing an unbearable burden on any limited liability for-profit corporation, no matter the personal, sincere beliefs of its owners.

P.S. Spoiler alert: the decision, which will be released in late June, shall, I regret to say–and in spite of Justice Alito’s wariness of philosophical entanglements–uphold the unity of corporate mind and body, and thus vindicate Spinoza’s dictum (hat tip, or apologies if you will, to Michael Della Rocca, Spinoza, ch. 3) that the “order and connection of ideas is the same as the order and connection of things.” The Court will rule that corporate entities (unlike mere natural persons) have the inalienable right to represent, via thoughts and/or ideas, any particular object they so choose.

Did President Obama Speak Truth To Power In Vatican City Today?

President Obama sat across from Pope Francis “at a simple desk in the papal library” today.  One imagines that he summoned the audacity to speak truth to power, as in:

“I am deeply concerned on behalf of 60 [give or take] million American Catholics and their bishops and archbishops, Your Holiness.  Who are you to say “who am I to judge?”  You are the Pope.  If you can’t make an argumentum ad verecundiam [argument from authority], who can?

Pope Francis replied that as St. Thomas Aquinas, citing Boethius, stated authoritatively eight hundred years ago, the argument from authority is the weakest form of argument.

That seemed to settle the issue, and the rest of the meeting was spent in meditative and prayerful silence, broken only by an interjection from Francis on the history of tango and a disquisition from Obama on the chain of reasoning behind his most recent NCAA bracket.

(As Wikipedia states: “The Latin noun verecundia means ‘modesty’ or ‘shame.’  Its link to arguments from authority is that they are used to make those who lack authority feel shame about discussing issues they lack credential or expertise in, and modestly back out of an argument.”)

P.S. There is no truth to rumors that the seed chest given to the Pope by President Obama contained contraceptive pills along with the fruit and vegetable seeds from the White House garden.  There is also no truth to rumors that the copy of the papal apostolic letter “Joy of the Gospel” given to President Obama by the Pope contained a personal indulgence absolving Obama of sins both of commission against the poor (by ignoring them in the quest for middle-class votes) and of omission against the rich (the non-war, that is–contrary to Fox News, may G-d have mercy on them–against the inordinate privileges of the 1% of the 1%).

Has Putin Infiltrated The Empty Heads Of The Mainstream Media?

It would seem so.  Here is one example: an nbcnews.com story the other day, “Why Ukraine Conflict Could Look Like World War I” asserts, in a bland “just the facts” manner, that “about two divisions [of Russians] are poised along Ukraine’s eastern border with Russia, ready to intervene if ethnic conflict endangers large concentrations of Russian speakers in Ukraine’s southern and eastern regions.”  What if the story had abandoned Putin’s talking points and suggested instead that two divisions are poised to intervene whenever Vladimir Putin is feeling hot-blooded and pulls the trigger?  Or that two divisions will intervene as soon as the Spetsnaz Russian special forces already inside Ukrainian territory provoke enough subversion and conflict that military intervention will seem, regrettably, Putin’s only option?

I do not know whether the firms of Ketchum, Alston and Bird, and Venable, for example, are buddy-buddy enough with NPR or NBC to influence American mainstream news coverage, but I suspect Russia is getting its money’s worth, because these PR firms know how to leverage the mainstream pretense of an objective “view from nowhere” so as to make even ludicrous big lies seem plausible.  None of this is Putin’s fault, of course, but it might alert U.S. and European policymakers to the need to explain themselves even more directly, clearly, and repetitively to a public aging out of first-hand memory of the Cold War.

Rick Warren May Render Unto God And Caesar, But Not Unto The Facts Of The Hobby Lobby Case

Rick Warren, pastor and best-selling author of The Purpose-Driven Life, recently published a Washington Post op-ed supporting the Hobby Lobby company’s claim that they should not have to comply with provisions of the Affordable Care Act requiring that employee health plans include contraceptive coverage.  Warren testifies to the wonderfulness of David and Barbara Green, and I do not doubt his testimony.  I do doubt that he knows what he is talking about when he asserts that “Hobby Lobby is not a secular, publicly-traded company.  Rather, it is the personal, purpose-driven mission of one of the most devout families I’ve ever met.”  Warren is correct that Hobby Lobby is not publicly traded, but it is most definitely a secular company in that Hobby Lobby, like all corporations, is brought into being, chartered that is, by Caesar, with the state-granted privilege of limited liability.  If the Greens want to do business as individuals, with full accountability to both God and their fellow human beings, no one is forcing them to incorporate, let alone distance themselves further with a trustee ownership structure, which they did. But if David and Barbara Green, or the Hobby Lobby corporation they founded, wants the privileges of incorporation–especially limited liability–they are on shaky ground complaining about the burdens on their personal consciences caused by generally applicable public laws.  Obamacare does not force them to use birth control, let alone abortion-inducing drugs, themselves.  No one is forcing their employees to use birth control.  The law does not compel them to provide any health care plan whatsoever, though it may fine them for that, so as to spread the social costs of irresponsible corporate behavior.

Warren asks, “do Americans have the freedom to place our beliefs and ethics at the center of our business practices–or must we ignore them when we form a company?”  Seductive rhetoric, but Warren’s dramatic either/or is at odds with the reality of corporation law.  “We” do not form a company all by ourselves, “we” and our state (and, at least implicitly, federal) government have to come to terms before incorporation occurs.  So we have considerable latitude, or freedom, to act according to our beliefs and ethics, but that latitude may be limited by laws.  If the laws transgress against our consciences, we have the option of dissolving the corporate structure and going back to the land, or wherever “we” came from.

Warren claims that the Greens “live their religious values and ethics in every aspect of their business…by their commitment to helping employees maintain a healthy work-life balance, which includes closing on Sundays so workers have more time with their families.”  I wonder if the workers have not just the “positive liberty” (see Isaiah Berlin’s classic essay “Two Types of Liberty”) to fulfill their truest selves by spending Sundays with their families, but also the “negative liberty” Americans prize so much.  If Hobby Lobby’s workers have the “leave me alone” negative liberty we Americans love, might they spend their Sundays with boyfriends and mistresses, ignoring their families completely, even employing birth control, and in general amusing themselves to death?  Whose freedom and what vision of freedom is at stake in this case?

Ultranationalism OK For Me But Not For Thee?

Kimberly Marten, professor at Barnard College, pointed to a change in Putin’s way of referring to “Russians” on Tuesday (in a Washington Post “Monkey Cage” blog post and in an interview with “Here and Now”) that she found ominous: Putin had been careful to say “Rossisskii,” which means persons of any ethnicity or nationality living inside the borders of the Russian Federation, but on Tuesday he switched to “Russkii,” meaning ethnic Russians only.  I imagine this shift to Russian ethnic nationalism is likely to play well with his intended core audience, but it does make his propagandistic claims that his goal is combatting abusive Ukrainian “ultranationalists” even more ludicrous, in spite of the spectacle of Svoboda thuggishness at Ukrainian state TV.  (The Onion’s commentary from inside Putin’s soul: “Thanks for being so cool about everything,” to the U.S., Europe, and pretty much the whole world!)

The least Western media can do is to report on Putin’s actions without retreating behind the journalistic “view from nowhere” as if that excused historical illiteracy.  Of course Russia has longstanding historical ties with Ukraine, and Russia has national interests, and Sevastopol’s Russian naval base is an important warm-water port.  But, as Daisy Sindelar writes in “Ukraine Unspun” (at rferl.org), “Crimea, which has been claimed by a number of empires during the past millennium, has never really been an inseparable part of anything.  Russia wrested it back from the Ottoman Empire in the late 18th century [thus the Crimean Tatars are more “native” Crimeans than Putin’s St. Petersburg and Moscow cronies–and are being pushed off their land by Putin just as they were by Stalin], and the peninsula spent only 37 years as a part of the Soviet Union’s Russian Republic before being transferred to Ukraine [Putin is unlikely to rehabilitate Kruschkev].”  So much for Putin’s assertion that “in people’s hearts and mind, Crimea has always been an inseparable part of Russia.”  Sindelar deconstructs several other specious and ahistorical claims made by Putin, such as “[in] Russia as a whole…not a single ethnic group has been lost over the centuries.”

Speaking of deconstruction, Putin does have a sharp eye for the soft underbelly of Western and specifically American hypocrisy.  He sometimes even speaks the truth, and should be heeded when he does.  But Putin’s main goal, to create cognitive dissonance, resignation, and paralysis in European public opinion, can and should be resisted.  If he points to hypocrisy and unfreedom in the “free world,” we Westerners can and should listen and become better citizens for it, but with respect to Ukraine the least we can do is offer some real material support, at the probable cost of some inconvenience, to promote the worthy cosmopolitan project begun in the aftermath of World War II with the Franco-German coal and steel pact.  Merkel and Obama may have failed so far to induce Putin and Russia to move toward Western norms and normalcy, and Putin is using EU governance weaknesses to his advantage in the short term, but it is possible–and urgent–for Europeans to think and plan more strategically in the light of the caesura of 2014.  We should not be drawn into a permanent zero-sum or negative-sum mindset, and we should not dwell in Putin’s dystopic mental world full-time, but it would be unwise to plan and act as if Putin has not strayed far from the international law he purports to uphold.

By the way, Putin will gain credibility on referendums when he accommodates the 1992 pro-independence Tatarstan referendum and then allows a free and fair vote, with international observers, in east Prussia, including Immanuel Kant’s home town of Konigsberg/Kaliningrad.  Not to mention a positive response to today’s news of a request for an independence referendum in St. Petersburg!

P.S.  If Obama’s “reset” with Russia was naive and misbegotten, he may have Lloyd Blankfein, among others, for company.  Businessweek reports today that Goldman Sachs and Morgan Stanley are “being forced…to reexamine their bet on friendlier relations between Putin and the West.”

Update 3/22: OSCE observers head to Ukraine, 100 at first, maximum of 500; Russia had stonewalled on this for a week but dropped objections Friday (the Organization for Security and Cooperation in Europe is composed of 57 nations in Europe, Central Asia, and North America, and as with the EU unanimity is needed to move forward with anything).  I think this makes Russian disruptions and destabilizations somewhat less likely leading up to national elections May 25.  Once those elections happen, Russia may be much less able to claim with any plausibility that Ukraine is being hijacked by fascist brigands.  In sum, a good sign and the first real signal of possible de-escalation, though the observers will not be allowed into Crimea at all.

Where Are Russian Speakers Truly Free? Maybe Only In Ukraine!

Hat tip to Timothy Snyder, author of Bloodlands, who points out (London Evening Standard, March 17) that most Ukrainians are bilingual, and “cosmopolitan in a way that most of us are not.  Unfortunately, we reward them for it by not noticing that they are bilingual, dividing them into groups of Russian- and Ukrainian-speakers, drawing the conclusion that there are two nations instead of one–and thereby preparing ourselves for Putin’s war propaganda.”

Snyder also notes that “Russian is a completely normal language of interchange in Ukraine.  There, tens of millions of Russian-speakers read a free press, watch uncontrolled television and learn from an uncensored internet, in either Ukrainian or in Russian, as they prefer….There is a country where millions of Russian-speakers lack basic rights.  That country is the Russian Federation….As the joke goes, Ukraine is a country where people speak Russian, while Russia is a country where people stay quiet in Russian.”  The Ukrainians who cheered Mikhail Khodorkovsky on the Maidan in Kyiv the other day are “Putin’s real Ukrainian problem: free people who speak freely in Russian, and might set an example one day for Russians themselves.”

Should U.S. and Europe Drop Sanctions Altogether–On Iran?

It seems that traders in world markets have little concern that Russia’s annexation of Crimea will be much of an impediment to anyone’s profitability, given that Ukraine is a “far-off country of which they know little,” to paraphrase Neville Chamberlain’s reaction to the German annexation of Czechoslovakia.  The bankers and hedge funds and bond traders do not see Putin coming for them.  Right they may be, at least in the short and medium term, after which it will be somebody else’s problem, like global warming.  The EU governance rules require unanimity, and sanctions are only as strong as whatever Cyprus and Bulgaria, let alone loyal-servant-of-the-City-of-London David Cameron, will approve.

President Obama and NATO can certainly protect their own sovereign space, but do they simply watch while Putin destabilizes and propagandizes Ukraine?  The amoral logic of capitalism that makes sanctions hard to enact or enforce seems to be in Putin’s favor, but it could cut more than one way.  How about dropping all sanctions that keep Iran from freely selling its natural gas?  If western Europe and the U.S. are going to continue doing business with a guy like Vladimir Vladimirovich, why not do business with Rouhani?  Let Iran and Russia knock themselves out competing and cutting energy prices.  I may not have thought through all the possible consequences, I admit, but it seems worth considering, if only to get out of the mindset that the West is simply reacting rather than initiating.

Who Are You Calling “Provocative”?

The catchword of the accelerating crackdown on expression of anti-Putinist views in Crimea, as well as Russia, is “provocative,” as in “don’t ask provocative questions!”  The civic space for freedom of speech, expression, and assembly is contracting as carpetbagging (or Russian-flag-bagging) Russians appear to be trying to provoke Ukrainians into a reaction that Putin can use to justify openly armed intervention in eastern Ukraine as well as Crimea.  So far Putin has left himself an escape route from the burden of actually paying for Crimeans’ daily needs by the seemingly silly denial that there are any Russian troops in Crimea.  That denial seems absurd if you have access to non-RT news sources, but many millions of Russians have put on their rhinoceros horns (see Eugene Ionesco) and choose to accept the Kremlin version of events, in which “provocations” by “fascists” and “ultranationalists” are causing a reluctant Vladimir Putin to accept his responsibility to protect brotherly Russian-speakers and ethnic Russians in a fraternal Ukraine currently suffering under illegitimate rulers.

Samantha Power, U.S. Ambassador to the United Nations, asked sarcastically in a recent emergency Security Council session if Russia had taken upon itself the role of “rapid response arm of the UN High Commissioner on Human Rights.”  She was certainly not an architect of the Iraq war, so she can perhaps speak without gross personal hypocrisy, but one legacy of the U.S. invasion of Iraq (among other American adventures) is how easily Putin or Lavrov or Vitaly Churkin, Russia’s UN ambassador, can level plausible charges of hypocritical self-serving provocation against Americans–regardless of the big differences between Russia’s intimidation in Crimea and secessionism in Kosovo or Scotland.

Putin and his advisers may well see the Euromaidan protesters as paid agents of the Western world who have provoked him into an unavoidable, reasonable, and in fact necessary response.  He may be right if only in the sense that the Maidan movement expressed a yearning for a (perhaps idealized) western prosperity under normal rules of law that, if it took hold in Russia itself, would shake rattle and roll Putin’s world of autocratic Orthodoxy and kleptocracy.  Provocative people and media in Russia–Navalny and lenta.ru, for example–are in for a bumpy ride in the short term; but I think Putin, by showing his brutish hand against Ukraine, has provoked consequences beyond his control and likely unpleasant for him and his cronies.  My prediction depends partly on the resilience, imaginativeness, and determination of Muscovites and other Russians, and partly on the resolve of Angela Merkel, whose supposed remark that Putin was in “another world” (leaked by an anonymous Obama aide a few days ago after a Merkel-Obama phone call) should be interpreted in light of her more recent public accusation (a couple of days ago in a speech in Germany) that Putin is following “jungle law.”  For Merkel, Putin’s sin is upsetting the hard-won European progress toward legal-rational-technical institutions as the royal road to prosperity and peace.  Putin has publicly disrespected the U.S. government perspective on Ukraine, but his provocative insult to Merkel by ignoring her proposal of an OCSE contact group, including observers in Crimea, may do even more to gum up his plans.

P.S. The Ukrainians seem to have learned something from the hotheaded mistakes of former Georgian president Saakashvili, who took the provocative bait of Russia and counterattacked in 2008.  Ukrainian nonviolent resistance has, I think, complicated Putin’s plans, at least to the extent that his adventurist disregard for international norms and laws has been laid bare.  Putin’s use of special ops “Spetsnaz” soldiers is ominous, and Ukraine may have a hard time preventing their subversion, but many Ukrainians, as a recent Daily Beast story on “Russia’s Special Ops Invasion of Ukraine” notes, fought with Russian “Spetsnaz” commandos in Afghanistan, so their tactics are not a great surprise.

If Senator Feinstein Only Cared About My Privacy Too, That Would Be So Nice

Senator Dianne Feinstein made a speech on the Senate floor yesterday that ought to put wheels in motion to make CIA head Brennan worry about spending prison time.  But her pugnacious, blind-eyed, and pigheaded defense of the NSA over the last nine months diminishes the moral authority of her accusatory speech.  She seemed nonchalant about other people’s Fourth Amendment rights, but suddenly got very touchy about her own.

It would be fabulous if she as well as John Brennan and Mike Rogers (House Intelligence chairman) and President Obama would realize that they ultimately have no place to hide from our scrutiny of their transparently self-serving utterances, and that they will be judged mercilessly if they do not act as public servants rather than privileged mandarin rulers.

Is Europe As Civilized As Kyrgyzstan?

Hat tip to Kyrgyzstan for stating the obvious: Yanukovych is no longer the legitimate president of Ukraine.  The word “kyrgyz” means “we are forty,” referring to forty tribes that united against the Uighurs, says Wikipedia.  Will the forty or so tribes of Europe unite in an effective response to Putin?  They seem to have a collective action problem and a myopia problem.  Maybe they could use a charismatic Kyrgyz leader to put them all inside a yurt until they get themselves together.

Casuistry Is Where You Find It: Francis And The Dalai Lama

Pope Francis stated in a recent interview with Corriere della Sera that “I never understood the expression ‘non-negotiable values.’  Values are values, period….I don’t understand in what sense there can be negotiable values.”  He also suggested that he was not opposed to civil unions: “Marriage is between a man and a woman.  The lay states [he means secular governments as opposed to the papal states, n’est-ce pas?!] want to justify civil unions in order to regulate diverse situations of cohabitation, motivated by the need to regulate economic aspects among persons.”  Not a ringing endorsement of actual same-sex relationships, but notable for lack of gay panic.

Francis praised the “beautiful and profound presentation” Cardinal Walter Kasper made recently on the “abyss between doctrine on marriage and the family and the real life of many [Catholic] Christians,” remarking that he, Francis, “would have been concerned if in the consistory [a preparatory meeting ahead of this fall’s synod of bishops on family and marriage issues] there wasn’t an intense discussion.”  Francis did not, however, seem to want much intense discussion on either the possibility of women in actual church leadership positions (criticized as a wrongheadedly “functional” approach!) or much criticism of the handling of priestly sexual abuse (“the cases of abuses are terrible…but..the Catholic Church is perhaps the only public institution to have acted with transparency….And the Church is the only one to be attacked”).  Francis claimed that “casuistry does not help” solve such issues. I would say that he is getting a bit defensive, a bit pot-calling-the-kettle-black, and that does not suit anyone well.  As a Jesuit, he is well acquainted with the theory and practice of casuistry.  For non-Jesuits interested in learning more I would like to commend The Abuse of Casuistry, a fine monograph by Albert Jonsen and Stephen Toulmin.

The Dalai Lama, for his part, has just leapfrogged Francis.  in a TV interview with Larry King, he has come out as OK with gay marriage!  Age before beauty, apparently: the DL is 78, Pope Francis just 77.

Propaganda Battle In Crimea Enters Fourth Dimension

Apparently following up on hints dropped on Twitter, or perhaps on a New York Times story that noted “it has been half a century since Crimea was lopped from Russia, but for many, it may as well have been yesterday,” the new authorities in Crimea have again changed the date of the referendum.  Yes, it will be held yesterday.

Update Friday March 7: On the Guardian live Ukraine blog today there is a post indicating that the March 16 Crimean referendum ballot has no option to vote against Crimea joining Russia!  So, vote yesterday, and vote yes or yes.

Expert and quasi-expert commentary continues to be divided between “Putin is reasonable, within his rights, and maybe brilliant” (Stephen Cohen of NYU, as well as the bizarre American right-wing man-crush on Putin) and “Putin has bitten off more than he can chew” (Chrystia Freeland in the NYT, some of the Carnegie Europe and Moscow Center bloggers, and Timothy Snyder, author of Bloodlands).  In Tolstoy’s story “How Much Land Does A Man Need?” the protagonist’s “walking purchase” kills him, as he walks faster and faster so as to claim as much land as possible before the sun sets, but he collapses and dies, ending up with only six feet of space in the ground.  Will that be Putin’s fate?

Should Chief Justice John Roberts Be Impeached Because He Defended A Florida Mass Murderer?

The U.S. Senate yesterday voted against the nomination of Debo Adegbile to become head of the Justice Department’s Civil Rights Division.  Seven Democratic Senators heeded pressure against Adegbile’s nomination by the Fraternal Order of Police, who objected to the nominee’s participation in a legal appeal against imposition of the death penalty on a convicted cop killer from Philadelphia.  I do not recall any opposition by the police union to the nomination of John Roberts to become Chief Justice of the U.S. Supreme Court–even though Roberts helped defend a man convicted of killing eight people in Florida.  As a NYT blog notes, there seems to be a new hierarchy of victimhood.

The brave work police do to protect law-abiding citizens against criminals is not advanced or promoted by attacking the adversarial system of law, in which part of a lawyer’s job involves defending some nasty people along with some who have been unfairly accused.  Lawyers are often scorned and ridiculed, sometimes for good reason, but if police unions or anyone else campaign selectively against some judicial or governmental nominees because they did their part in a system designed to presume innocence until proven guilty, they are sowing the wind.  Of course lawyers defend plenty of dirtbags–that’s part of their job.  If you have a problem with that, you are inviting anarchy.  If a police union attacks some murderer-defending nominees and not others, they (and I am not talking about cops on the beat, but about the Fraternal Order leaders) are promoting a nasty, brutish, and short life for everyone.  I am not taking a position here on the sleaziness or uprightness of lawyers as a class of people.  I am attacking the lack of professionalism and self-discipline on display here by an organization representing police, which may have the power going forward to block some nominees but will likely do itself little credit thereby.  The president of the fraternal order of police called the nomination a “thumb in the eye of our nation’s law enforcement officers.”  Not true, unless the law enforcement officers are going to be judge and jury too.  We are all part of a system in which legal representation, even for horrible people, is close to the heart of what makes us civilized and free.

Revanchism and Irredentism, Sub Rosa No More

According to former Georgian President Saakashvili, speaking from Ukraine as quoted in today’s WSJ, Putin knows “exactly what to do” while in Ukraine “nobody knows quite what to do here, and it’s really messy.”  If Putin’s actions were governed by Colin Powell’s Pottery Barn rule, “you break it, you own it,” he might be more cautious, but as Saakashvili observes, Putin is sowing chaos on purpose in order to chop Ukraine into pieces.  He seems to have taken control of the Crimean region, while claiming the high ground of simply protecting the “rights” of ethnic Russians–and, as in Georgia in 2008, issuing plenty of Russian passports to sympathetic local people.  Until today the Russian troops, or perhaps Russian “Blackwater” mercenaries, denied they were doing anything out of the ordinary.  As a joke on Twitter described Crimean airport passport control: “Nationality?” “Russian.”  “Occupation?”  “No, no, just visiting.”  But today the Russian Duma and Putin have come out of their closets, though still hypocritically paying tribute to virtuousness.

If I were in Yalta, or perhaps Kharkiv, the message I would probably get from radio and TV (if the connections were still open) would be that “fascists” and “brigands” had illegitimately overthrown the Ukrainian government (probably without saying much about Yanukovych, whom I doubt the Russians will allow to give many more news conferences) and that Mother Russia stands ready to help protect their neighbors in need.  No sense of irony is apparent when far-right Russian politician Vladimir Zhirinovsky, whom some would call neofascist, is sent to Crimea to remind the “little Russians” of their “fraternal” ties to greater Russia.  If I were in Kiev or Lviv, I would probably hear a very different story, emphasizing the heavy hand of Putin and expressing the yearning to be closer to the sparkling westerners (!) in Krakow or Bratislava.  The message I get from American and western European reporting is that Putin may perhaps be doing something deplorable and dangerous, but that much remains “unconfirmed.”  True as far as it goes, but the gist of the story is clear enough.

Putin no doubt thinks Nikita Krushckev was a fool in 1954 to present Crimea as a “gift” to the Ukrainian SSR (Krushckev was at least half-Ukrainian), and it looks like he has now taken the gift back, with extra interest soon to be charged. John Boehner has implied, and John McCain has said outright, that President Obama is “incredibly naive” about Putin and that whatever happens that they don’t like will be his fault, although they propose no particular actions.  For his part, President Obama remarked in a recently published New Yorker interview that he doesn’t really need George Kennan anymore–he might want to rethink that one.  Christine Lagarde seems in no hurry to promise bailout money to a fragile new government in Kiev until they enact austerity measures sure to cripple that very government’s legitimacy. Meanwhile, Putin has the price of gas to hold over Ukrainians.  Are Western Europeans ready to impose real costs on Putin by cutting off energy purchases from Russia and themselves suffer the inconvenience and cost of finding alternatives?

Krushckev probably did not think he was giving anything of value away in 1954. Putin is redressing that mistake, and perhaps more, in 2014.  In 2013 he had the luxury of the moral high ground on several issues, while this year his kinship with the Night Wolves and the Berkut is no longer hidden sub rosa.  As another tweet (#Russiainvadesukraine) put it, “Visit Russia before Russia visits you.”

P.S. Frank Costigliola’s NYT op-ed on Feb. 27 goes into detail on why President Obama and U.S. policymakers should pay attention to what George Kennan had to say about Russia and the Soviet Union.

Update Monday March 3: Though NPR tells us there is “no resistance” to Russian control of Crimea, they may be missing the significance of nonviolent noncooperation, as Shaun Walker and Graham Stack of the Guardian explain in a dispatch from Crimea, where the officers at Ukraine’s naval HQ refused to go along with the recent defector Berezovsky and he snapped at them “don’t ask provocative questions,” which is a fair summary of the Putinist mindset.  Wives of Ukrainian military barricaded inside bases are taking food and, along with at least one Ukrainian Orthodox bishop, providing human shields.  Putin may well provoke a shooting war, but for now there is an intense propaganda battle going on.  (Timothy Snyder, author of Bloodlands, has a piece at nybooks.com on the “haze of propaganda” surrounding Ukraine.  For a mid-20th century view on propaganda, see George Orwell’s 1947 preface to the Ukrainian edition of Animal Farm.)  Samantha Power and Vitaly Churkin presented vivid contrast at an extraordinary Security Council meeting convoked by Ukraine’s UN ambassador Saturday night.  Russia tried to take the session private!  Samantha Power did a public service, in my opinion, simply by expressing more of the truth of the situation than the French or the British were willing to do. Putin has probably calculated correctly that Angela Merkel and Barack Obama and David Cameron are not prepared to do anything that would change his determination to repossess Crimea; the rest of Ukraine is on the table now.