Meals From The Marketplace

            Sookja Kim Winters was four months into her ninety-third year of life when she died in our home last week.  She had been diagnosed with pancreatic cancer three months earlier, and she lived with us from that initial diagnosis until she took her last breath.

            Sookie was Jeri’s aunt (her mother’s sister) and was very much like another grandmother to our sons, Keith and Phil.  To me, she was a dear friend, an intellectual and spiritual companion, and a woman of great faith from whom I learned and shared much of the stuff that makes life special.

            When we celebrated Sookie’s ninetieth birthday in December of 2009, she could have passed for a woman of 70.  She was still in great shape physically, with a figure most women half her age would love to claim and a face that was amazingly free of the wrinkles or jowls or the facial puffiness that is the normal fate of those who survive to that exalted age.

            Photos of Sookie as a young woman show her to have been blessed with beautiful features, and it is no exaggeration to say that she was an ethnic beauty (a Korean-American, born in California of Korean immigrants).  But she worked hard to maintain her youthfulness and her physical beauty, swimming regularly at the Y (in San Francisco, where she lived with her third husband) and maintaining the same size-two dress size throughout her senior years.

            When she turned 90, Sookie declared that she intended to live to be 100, which I regarded as more of a statement of her sense of excellent health than a claim to be able to control those things that cannot be controlled.

            Death is one of those things, and when she suddenly developed jaundice right after the start of the new year, the inevitable was set in motion. 

            The diagnosis came quickly, after a long night in Sacramento’s Sutter General Hospital ER (where she received immediate attention and excellent care).  The next day, a surgical procedure relieved the blockage the tumor had caused, thereby restoring her natural color.  But, as subsequent tests revealed (and as is all too often the case with this most dreadful of diseases) the tumor had grown too close to important blood vessels to be safely removed.  Sookie was terminal.

            She accepted this news with what I can only describe as amazing equanimity.  “Attitude,” she kept saying to herself that first night, as if convincing herself that she would get it right in her head and deal with whatever was to come.  Thereafter, she never exhibited any sign of remorse or bitterness. 

            January was a good month.  Her pain (always a concern with this type of cancer) was controlled with relative ease (mild narcotics), and she maintained her mental acuity, reading any number of books (among them, Irving Stone’s “Those Who Love” and Morris L. West’s “The Shoes of the Fisherman”).  She also kept an active social calendar, as a steady stream of friends came to our home to visit with her.

            Her appetite during those weeks was good.  Always a small women (she never topped 100 pounds), she was committed to keeping her weight up for as long as she could, even as she was destined to drop steadily from 90 pounds at the outset of the disease to barely 70 at the end.

            But in January, and through much of February, she ate what for her were large meals.  Her tastes varied from her pre-disease years.  Suddenly she craved ice cream and steaks, among other items.  We went out to dinner with friends, just as we had in her healthy years, and, except for the fact that she was dying, things were relatively normal. 

            Throughout February she was still very much with it, writing letters to friends and relatives, keeping her calendar and chatting regularly with her husband, who, himself in failing health, remained in San Francisco.  I found it mildly ironic that she continued to have the same concerns about their relationship (some things never change) that had been a constant throughout their eighteen year marriage.

            During the last week of February, our younger son, Phil, came to visit.  They had a number of good chats, but when he left, she went into more rapid decline.  That weekend, another very close friend came to visit, and on March 4 the four of us went out to dinner.  It was the last time she left the house.

            At that point, she started to use the walker that Sutter General had provided.  (We used in-home hospice care, which worked well, as we were committed to keeping her with us, unless she required hospitalization at some point; she never did.)  By then her need for pain meds had increased and her energy levels had begun to wane.  She was less inclined (or able) to sit through a whole DVD movie with us and more likely to sleep late and take long naps during the day.

            Our older son was due to visit later in the month, and I began to be concerned that she may not last long enough to have meaningful visits with him.  But I think she made up her mind that she would, and she did.  Even though she was essentially bed-ridden by the time Keith arrived, she was still able to relate to him.  They shared several special hours together over the week he was here, albeit she was occasionally delusional by then as well.

            The delusions were caused by a combination of the narcotics and the lack of sustenance (she had, by then, given up on food and was only drinking minimal amounts of water).  Once Keith left, she essentially stopped fighting. 

            There was no quality of life at that point.  She clearly wanted to die.  But, as the hospice nurses told us, because her heart was so strong, it still might take a while.

            A while turned out to be one week.  She died peacefully, essentially in her sleep, at around 5:30 in the afternoon of April 4.  And, for whatever reason, her face bore a beatific smile that suggested a sense of rapture.

            I really didn’t need to have taught appellate advocacy at McGeorge School of Law (for almost ten years now) to be able to grasp the probable result in the Supreme Court’s consideration of the Affordable Care Act.  I knew even before the oral arguments last week that the Court was likely to declare the law unconstitutional and had so predicted as long ago as last year.

            Here is what I wrote when pondering the question in a column last July:

            So what will the nine-member Supreme Court do?  The answer probably hinges on Associate Justice Anthony Kennedy (the other eight, four on each side of the issue, being reasonably predictable).  And, if past decisions (e.g., Bush v. Gore and Citizens United) are a guide, his vote is more likely to fall with the Scalia-Thomas-Roberts-Alito bloc than with the Court’s moderates.

            Kennedy has always been a conservative jurist, just as he was a conservative law professor when he taught Constitutional Law at McGeorge back in the 1970s.  His course in those days was heavy on the Commerce Clause and the expanded powers the New Deal decisions had given Congress to control everyday activities.  While he also taught the importance of stare decisis (“let the decision stand,” the judicial recognition of the value of certainty in the law), he was not at all shy about decrying the judicial activism that found things in the Constitution he did not think were there.

            Of course, now he is part of a judicially active court that is interpreting statutory and constitutional issues the other way (to the right, instead of to the left).  And so, with Bush v. Gore, he agreed to a per curium (by the Court) opinion that interpreted the Equal Protection Clause of the Fourteenth Amendment as it had never been interpreted by a majority of the justices on the Court before.  And, in Citizens United, he gave to corporations the power to control the financing of elections by grossly extending earlier Court decisions that had deemed corporations to be people for purposes of commercial transactions.

            So, in my mind, the Affordable Care Act was on life support as soon as the Court (oddly, at the Obama administration’s request) agreed to hear the appeals from conflicting lower court decisions on the law’s constitutionality.

            But if past decisions by a Supreme Court Justice are tea leaves in terms of predicting how that Justice might decide a current case, the way that Justice handles the oral argument on that case is much more akin to forecasting tomorrow’s weather.  The former can be pure guesswork, while the latter is much closer to absolute reliability. 

            And if the oral arguments last week revealed anything, they revealed that a heavy storm is in the forecast for President Obama’s signature legislative achievement of his first term.

            Oral arguments often consist of the Court’s Justices asking questions more to persuade their colleagues on a point than to get answers from the attorneys advocating a particular position.  And, too, Supreme Court Justices will often use their questions to establish the basis for the decision they will ultimately make on the case they are hearing.

            Those questions often take the form of hypotheticals, by which the Justices will seek to show how a particular position, if adopted, would lead to presumably undesirable results.  The key hypotheticals in last week’s arguments concerned broccoli and burial insurance. 

            Those seemingly disparate purchase items were used hypothetically to try to get the administration’s advocate, Solicitor General Donald Verrilli, Jr., to admit that a mandate, such as the Affordable Care Act contains, violates the Constitution because it would make a mockery of the power granted to Congress under the Commerce Clause.

            “Everybody has to buy food sooner or later,” Justice Antonin Scalia posited during Tuesday’s hearing (responding to Verrilli’s argument that the health insurance mandate is justified because at some point everyone needs health care).  “Therefore, you can make people buy broccoli.”

            The statement was really a question, which Justice Samuel Alito emphasized by then asking Verrilli to answer it “as succinctly as you possibly can.”

            Verrilli’s answer probably didn’t satisfy either of the Justices. 

            “The class to which that requirement applies either is or virtually is most certain to be in that market when the timing of one’s entry into that market and what you will need when you enter that market is uncertain …,” he started, never really getting to the broccoli hypo.  His attempt to answer the burial insurance hypo was equally unsuccessful.

            The correct answer to both hypos (the one Verrilli should have been fully prepared to give – at least at McGeorge we would have so prepared him) is that, yes, Congress can mandate that everyone buy broccoli or burial insurance if it is stupid enough to enact such a law.  The check on such irrationality, he then should have added, is the ballot box, where the people have the ability to decide whether they like or do not like what their elected representatives (and presidents) have done.

            But Verrilli, for whatever reason, was flummoxed by the hypos, and by the end of the day, just about everyone but the most loyal Obama and Verrilli supporters was admitting that the Solicitor General had made a mess of the administration’s position.

            It probably doesn’t matter that he did.  This is an activist Court that will rule the law unconstitutional just as it would have ruled the New Deal legislation unconstitutional if it had been given the chance. 

            Never mind that many insurance companies are now wondering how they can suddenly refuse to honor pre-existing conditions or deny coverage to children up to the age of 26 and that some in Congress are starting to fret over how they will avoid the backlash that is bound to develop once the new law is dead and the status quo ante returns.

            “Obamacare” may have been an easy target, but it did address real issues that real Americans care about.  Without it, those who opposed it will be hard pressed to explain what is supposed to take its place.

            “I think the hoodie is as much responsible for Trayvon Martin’s death as George Zimmerman was.”

-Geraldo Rivera

            Geraldo Rivera didn’t mean what he said.  No one with half a brain could intentionally make such a stupid remark while posing as a news commentator on the national media (except, perhaps, for Rush Limbaugh, who presumably does have that much gray matter and has proven he can and will make just about any asinine comment). 

            Rivera’s remark may well have been intended to be sympathetic to the young 17-year old whose death has become at least as noteworthy a national issue as whether the Supreme Court will find the Affordable Care Act constitutional.  Instead, it revealed a level of insensitivity that raised questions of bigotry in the eyes of some.

            I don’t think Rivera is a bigot, but his comment does frame a meaningful question, to wit: is racial bigotry entirely distinct from racial insensitivity?

            Of course, we are just talking about words here, so let’s not get too hung up on the relative pejorative aspects of the labels.  But the Martin killing has brought race back into the national consciousness like nothing since the election of Barack Obama.  Everyone, seemingly, has an opinion on the cause and meaning of the young teen’s death.

            But before getting to what those opinions and reactions might indicate about those who have them, let’s recognize an important fact that almost everyone, in their haste to adopt one perspective or another, has conveniently overlooked:  No one but the killer knows what actually happened leading up to the shooting. 

            Yes, there is some evidence of what had transpired up to a minute before it (the conversation between Zimmerman and the 911 dispatcher; the statements of Martin’s girlfriend of their conversation).  But as to the actual killing itself, the record is essentially void of details.

            So, while what evidence there is may suggest it entirely unlikely, it is conceivable that Trayvon did become the aggressor in an altercation with Zimmerman and may have punched him in the nose, causing Zimmerman to fall to the ground, and that Trayvon then appeared to Zimmerman to be preparing to continue his assault with violent fury, which led Zimmerman to fire his gun at him.

            That scenario may describe what actually occurred, and if something like it did occur, then under Florida’s “stand your ground” law (a separate issue that definitely needs to be explored but is not under consideration here), Zimmerman would have been acting in lawful self-defense when he killed the teen.

            But here is another fact that cannot be ignored:  Had the roles been reversed, to wit: had the young black teen shot and killed the older white male and claimed the “stand your ground” self-defense, he would not have been released on the strength of his own testimony and declared free of guilt.

            And it is that hard fact that leads to the question I posed earlier.

            In today’s America, some people regard groups of individuals who have immutable characteristics as either inferior or undeserving of equal treatment.  In common parlance, these people are called bigots.  Their bigotry is evidenced by their attitudes and their actions.  They speak ill of the members of the disfavored group and they do things with regard to members of the disfavored group that are intentionally hurtful of members of the group.

            If the bigotry is of a group of a different ethnic race, we call those people racists.  And there is evidence of racism in the killing of Trayvon Martin by George Zimmerman and evidence of racism in the reaction of the local police force to the killing.

            But what of the likes of Geraldo Rivera, whose grossly insulting comment was certainly hurtful of the parents and loved ones of Martin and of the racial group that he was a member of? 

            Insensitive, we say—spoken insensitively, to be more specific.  (We can’t say thoughtlessly, because in this instance Rivera clearly had given the matter considerable thought, to the point of relating it to his own children, he says.)

            And, of course, it was insensitive, but of what level of intent was it born? 

            If a person makes an insensitive comment in negligence, he or she may quickly recognize the insult and appropriately apologize.  Such mistakes are usually forgiven because they are deemed innocent of bad intent.

            But what of comments (or actions) that are not so easily dismissed as merely negligent?  What of comments or acts that flow from a basic ignorance of the other person’s circumstances or of the other group’s history?  Are such comments and acts merely negligent or are they evidence of something less easily dismissed?  Are they, indeed, akin to manifestations of the innate prejudice that is at the heart of all bigotry?

            So, here’s a little test you can take if you are game.  I offer it only to point out how easy it is to claim insensitivity in lieu of bigotry.

            How did you react to the news of Trayvon Martin’s killing?  Was your first reaction to think negatively of the victim or of the killer?  And if you thought negatively of the victim, what led you to that reaction?

            And when you heard the early details that seemed to suggest that racial bias had motivated the killer, did you find yourself in agreement with those suggestions or did you object to them?  Did you, indeed, find yourself making (or looking for) excuses or justifications to legitimize the killer’s action?  Were you defensive of the Florida law that he claims as his defense? 

            Taking it one step further, do you have a sense of what it might be like to live the life of a black person in America today?  Do you understand what it must be like to be continuously wary of how you appear in public?  Or of how your actions might be perceived by non-blacks in positions of authority?

            Are you aware of the reality of being black in America, even now in the age of Obama, or are you, in your ignorance, insensitive to issues of race?

            Most of us pass this test with flying colors.  And some of us tell ourselves that we do.  We may occasionally be insensitive, but that’s not the same as racial prejudice, is it?

            Maybe it’s just me, but some things don’t make a lot of sense.  I mean, I can understand why the same Republicans who four years ago were saying that the president (then George W. Bush) had no power to control the price of gasoline are now blaming Obama for the high price of gas.  Hey, that’s just politics.

            But, as I say, some things just don’t make sense.  Here are a few that have been puzzling me of late:

• How can John McCain sound so nutty one minute and so intelligent the next?  The latest example of that oddity is his insistence that the U.S. needs to seriously consider yet another war or two (in Syria and Iran), on the one hand, and his strong statement against the attack on women his party is conducting with respect to birth control, on the other.

Has this guy ever seen a country in turmoil that he didn’t want to bomb before trying diplomacy, which is, of course, exactly the opposite approach to use if you want diplomacy to work at all?  Moreover, doesn’t he learn any lessons from history?  I mean if he didn’t learn anything from his own Viet Nam experience (where he spent five years as a prisoner of war) shouldn’t he have figured out from the more recently disastrous escapades in Iraq and Afghanistan that war is not a great option even under the best of circumstances?

But McCain sounded like a true statesman on domestic matters this week when he strongly suggested that Republicans should get off of the women-bashing that has seemingly become the party’s new cause célèbre.  He sounds like a true statesman in telling his party to get back to issues of concern to all Americans if it has any hopes of regaining the White House in the fall

Tone deaf in one area; courageous leader in another.  Hard to figure, but there you have it.

• And speaking of hard to figure, what’s with this Obama guy?  How come he’s so dynamic and inspiring when he’s campaigning and so commonplace and desultory when he’s actually doing the work of running the country?  Are the two roles so different as to require completely distinct personas?

As a candidate, Obama captures the imagination of his audience.  He speaks intelligently, but without sounding like an egghead.  He strikes themes and fleshes them out with specifics, thereby both engaging and educating his listeners. 

On the stump, the guy is hard to dislike (unless you’re convinced he’s out to destroy the country, of course) and, in fact, seems like the perfect politician: forthright and decisive, a fighter for causes he believes in, and someone who can rally a nation around him.

But in his work as president he’s been as lackluster as some of his predecessors (Jimmy Carter comes to mind, just to mention another major figure of the recent past who was hard to figure).  Where a fighter is called for (as when the opposition party is playing games with his legislative proposals), he gets all wonky and feigns mild disappointment that others aren’t seeing what he sees.

What makes this dichotomy even harder to understand is that Obama has amassed an impressive record in his first term, both in foreign and domestic affairs.  He’s kept the country free from terrorist attacks and has largely defanged our principal adversary, al Qaeda, by killing its leader and several of his lieutenants.  And he kept the country from an economic freefall and now has it on the road to a gradual recovery that might actually start to feel pretty good in another year or two.

But in terms of keeping the country with him as he has moved it forward, it’s almost as if he either didn’t care or didn’t know how.  His amazing powers of communication while he is on the campaign stump somehow turn to the typical politician’s rhetoric when he is in his office.

A powerhouse when he’s running for office, a milquetoast when he’s actually in it.  Once again, hard to figure, but pretty much undeniable.

• And then we have that most august of American institutions, the United States Supreme Court.  Comprised of nine of the country’s best and brightest men and women of the law, this single branch of government has perhaps more power to change the broad course of our developing history than any other entity or individual.  And yet, it acts in the kind of that might have existed in the darkest days of Soviet control of the Kremlin instead of opening itself to public view as the bastion of freedom and protector of individual rights that it is.

A perfect case in point will occur next week, when the Court will hear three days of oral arguments on the Affordable Care Act, the healthcare reform law that Republicans derisively refer to as “Obamacare.”  The arguments will be attended by members of the press who will report on it in varying degrees of unsophisticated media-speak.  Perhaps a hundred or so regular citizens will be able to attend for short periods as the relatively small courtroom is periodically emptied to permit as many as possible to see a little of the “action.”

And, the arguments will be recorded for audio, but not video, same-day re-broadcast.  Amazingly, even that lifting of the opaque curtain surrounding the Court’s work is a major concession by the justices, who continually refuse to allow the hearings to be aired live on television, and usually even prohibit same-day release of the audio recordings. 

C-Span, the commercial-free, non-partisan public affairs network has asked for permission to set up cameras in the courtroom to show the country in real time how the arguments on the healthcare law proceed, but it has been denied, as have any others who have deigned to request such a monumental privilege on behalf of the very people the Court is supposed to serve.

In a third-world country such disdain for democracy would be expected, if regrettable.  In the country that espouses all the freedoms democracy promises, it’s an outrage. 

It doesn’t make sense, but, as I say, maybe it’s just me.