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Superior Forces

Lawyers all over the country are brushing up on a legal doctrine called Force Majeure. Why? Because it is the key lens for viewing deals disrupted by the pandemic. Since COVID-19 is disrupting almost all human interactions, Force Majeure and related doctrines are well worth examining. If you haven’t already, you’ll be hearing the phrase soon – and often.

When the Law names a concept or a doctrine, it usually resorts to Latin. You may have heard phrases like quid pro quo (“this for that”) or res ipsa loquitur (“the thing speaks for itself”) bandied about recently, for example. Force Majeure is French (“superior force”). So, there’s that.

What really makes Force Majeure interesting and not only for lawyers, though, is how aspects of the doctrine relate to our every-day approach in facing adversity. There are lessons for life in considering what matters here. (No, it’s not that hordes of readers are combing the Internet for posts on the law of Contracts. And no, what follows is not legal advice, obviously.) So, what is it?

The Concept

In ordering our affairs, we seek to hold each other, and ourselves, to doing what we promise to do. Courts are not pleased with those who breach contracts, and assess money damages for doing so. We value promise-keeping.

What happens, though, when an abnormal, outside event prevents one or both sides of an agreement from doing what they promised? That is, if a force superior to the parties’ intent intervenes? (Note: we’ll refer to this simply as the “event”. Also, to do what was promised is to “perform”.)

If someone has a contract with a town or a county to fix a road’s potholes (don’t we wish!) and an earthquake destroys the road, what happens to each side’s obligations? Or if one is hired to paint a barn that burns to the ground? The possibilities of events beyond the parties’ control (whether the cause be nature – floods, earthquakes – or mankind – terror attacks, war) are endless. The potential for complexity far exceeding these plain examples is limited only by the scope of our entanglements.

Sophisticated written contracts often contain Force Majeure clauses. In them, a parade of catastrophes is listed with some attempt to agree in advance who gets to skip, change, or delay performance – and under what circumstances. Some clauses include a catch-all provision to deal with events not mentioned.

After The Event

After the event occurs, if everyone agrees what should happen next, there’s no legal problem. (There are always the hardships and heartaches involved in picking up the pieces, unfortunately.) When the parties disagree, however, even after trying mediation, the courts ultimately must decide.  Was the event a Force Majeure? If so, how does it affect what the parties promised to do?

If there is a contract with a Force Majeure clause, the court will interpret and enforce that language. As in many areas of law, state law will govern. While that means the law will vary some, certain kinds of issues generally will matter:

  • If not completely unforeseen, the extent to which the event was unavoidable or not within the control of the parties  
  • Whether the event directly caused the inability to perform
  • To what extent there was a true inability to perform
  • Whether there were any attempts to perform
  • If the doctrine applies, what the appropriate remedy should be

The burden of proof is on any party seeking to invoke Force Majeure. Obviously the cases will depend on their facts, but there’s no doubt that COVID-19 will present numerous, daunting legal problems.

When There Is No Force Majeure Clause

It is possible to have either (a) an enforceable contract that is verbal rather than written, or (b) a written contract that does not contain a Force Majeure clause. Either way, there may still be a remedy. To address this very briefly, two similar doctrines of law have evolved in our so-called “common law”, on a case-by-case basis.

Impracticability is not just impracticality with an extra syllable, so lawyers can have another word nobody else says. It means something is beyond simply not practical to do, even if not quite impossible. If impracticable, it can’t be put into practice under the circumstances. So, parties invoking the doctrine must show the event to have been beyond their control and destructive to one or more of the contract’s essential assumptions.

Then there is Frustration. This is not exactly what Muddy Waters was singing about in “I Can’t Be Satisfied”, later inspiring the Rolling Stones’ “(I Can’t Get No) Satisfaction”. It is frustration of purpose. So, again, if parties reach an agreement based on assuming certain things will or won’t happen, and an event not their fault later shatters their assumption(s), relief may be available. Was the purpose of the contract frustrated?

[For anyone wanting more detail on the three doctrines, a quick search will provide scads of information. Continuing Legal Education is going berserk with courses on all this – all webinars, to be sure.]

Digging Deeper Into What Matters

In the flood of litigation expected in the wake of COVID-19, courts will have much to consider. Whether there are Force Majeure clauses to interpret, or doctrines like impracticability or frustration to apply, judges will find themselves asking similar questions:

Was performance impossible, or so difficult that it might as well have been impossible? Or was it just annoying, inconvenient, or somewhat more difficult or costly than anticipated? How difficult is too difficult?  Did the pandemic cause the impossibility in this case? Was it even relevant?

Did the parties act honestly and in good faith? Try to perform? Seek to limit the harm or avoid the negative consequences? Seek alternative solutions? Communicate?

Is there a way out of the situation that makes sense? Can justice be done? Is one side trying to take advantage? Is the event just an excuse to renege, or an attempt to renegotiate a deal one regrets? Should the contract simply be void? What if some sort of under-performance is possible, and better than nothing?

Equity and the Truly Superior Forces

Like anything else, the Law is not perfect. Limitations and imperfections exist, whether in statutes, common law, rules, or regulations. Inflexibility is therefore problematic. Up steps Equity, the conscience of the Law. Equity does not oppose the Law, but supplements it with an overriding concern for fairness and good sense. By the way, “Equity” (or “Chancery”) sometimes denotes a division in the court system where remedies other than money damages are sought. Equity’s principles or “maxims” are generally available to interweave with the Law, however.

Of all the old Equity maxims, my favorite is this: He who seeks Equity must do Equity. Wise words, those.

Honesty, fair dealing, good faith, reasonableness, decency, concern for the big picture – these are the kinds of things courts will be looking for in deciding Force Majeure (and related) cases. They’re also what we demand of ourselves and each other when we are at our best.

These are the truly superior forces.

The wise among us don’t wait for the courts to tell us so on a case-by-case basis. What the courts decide to do always carries tremendous significance, but is not as important as what we decide to do – every day, in matters large and small.

The current saying is “We’re all in this together.” In a sense that’s always true, not only during a pandemic and not just with respect to health.  Behavior, good and bad, matters. Bad behavior harms not just the victim but the perpetrator as well, and then ripples through the community. The same is true for the benefits of the good.

Our system and our way of life depend upon our embrace of truly superior forces – among them honesty, fair dealing, good faith, reasonableness, decency, and concern for the big picture. Whether our being “all in this together” ends up a blessing or a curse depends on us.

Ken Bossong

© 2020 Kenneth J. Bossong

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Opening Up While Shutting Down

The noise of everyday life is the noise of being perpetually busy. The shutdown imposed by the coronavirus pandemic provides a chance to open ourselves up.

Too Busy – Usually Real, Sometimes Less So

The frenetic pace of our lives is something we all bemoan at times, often with good reason. There is no time to think, or to reflect, plan, organize, or to reach out to neglected friends or family. We know the drill: job(s) leaving us exhausted; clutter that begs to be cleared; sleep deficits; the good book we’ve wanted to read, but don’t start because it’s “too long”; food wolfed down without really sharing a meal. How many marriages or other relationships suffer from inadequate time to really listen and share unvarnished thoughts and feelings?

Being “too busy” isn’t even limited to the employed. Since retiring, one of my pursuits has been to seek a new excuse for being less effective than I should be. That one’s not going well.

Now Comes the Pandemic

It looks like our bluff is being called. For many of us, lack of time will not be a problem for a while.

As one enterprise after another (sports, theaters, museums, businesses, schools) shuts down, all events (games, tournaments, conventions, concerts, cruises, flights, meetings) are cancelled or postponed. For fans who wait all year for March Madness, as an example, no basketball is indeed madness. The list of what’s not happening is mind-numbing. The announcements should be for what still is happening.

This virus is taking away all the good distractions that give us relief from the bad stuff in life – you know, like illness.

That’s not the only irony. It feels unsettling that our normal reaction to adversity – to gather together for support and camaraderie – is the very thing we can’t do in this crisis. Meanwhile, all this shutting down is happening amid weather (in Jersey, at least) that announces Spring’s rebirth.

Here’s a weird thought: What will the nightly news or the newspapers have left to cover? [“And now for the Sports, with Bob Skiffle. Bob?” “Thank you, Allison. Nobody’s playing. Back to you.”] A news broadcast will consist of the three C’s: Commercials , Crime, and Coronavirus, with a bit of weather thrown in at the end.

What Will We Do?

Forget what the reporting will be, though. What will we actually do with our time? How will Americans spend their time in a shut-down country? Even people whose jobs continue unabated during the shut-down will find most normal free-time activities unavailable. Imagine those whose jobs go away temporarily or (please, no) permanently. We sometimes say there’s nothing to do even when there’s everything to do. We know what we really mean at those times; what happens when it’s true?

We can read that good, too-long book or catch up on TV programming that we usually regret missing. Of course, we can also binge watch re-runs and endless drivel. There are other possibilities, some of them good.

To be clear, this is not to downplay the harm. There will be plenty. The worst harm, obviously, is to individuals who contract Covid-19. Beyond that, however, will be damage to people’s confidence and finances. There is no shortage of pundits telling us what all this means for the stock market, jobs, and the economy. The layoffs have already begun. State and federal tax revenues will plummet, even as the need for government assistance spikes. Yet…

Once we’ve cleaned all the stores out of disinfectant and secured more French-toast ingredients (bread, milk, eggs) than we could ever consume, there is opportunity here as well. If we can pause and take a deep breath, it might occur to us that we have time to think. The first thing to think about is Time itself.

Time Not Always On Our Side

Time is an artificial construct invented as a way to order our lives. Generally, it works. Time facilitates coordination of activity in a way similar to money facilitating commerce. It’s “midnight” at midnight because we agree to call it that.

Consider:  The next credit card payment is due (let’s say) April 1, with a ten-day grace period, because that’s the agreement. Investors in the lender expect profits from payment of loans and collection of extra fees when late. All of which is fine, as far as it goes. None of this is cosmically ordained, however.

If furloughed borrowers do their best to make payment but come up short, how could lenders justify waiving late fees to their investors? Well, by saying, “We all know what happened here. Profits will be a bit down this quarter, but we’ll all be fine.” If the investors’ creditors in turn take a similar tack with them, and so forth, we smooth out the path to recovery.

In choosing to share the pain, within reason, we can lessen it to the benefit of all. (Being the creditor to a  debtor in trouble is no fun, either.) This assumes, of course, that those able to meet their obligations will do so, rather than take advantage. Our system always depends on overall good faith. Also, when the economy comes back, we can make a point of hiring those who lost their jobs blamelessly.

All of this is to illustrate the bigger point: We can all give each other a break for a month, or longer if needed, and not just financially.

Wouldn’t it be great if, after this unwanted hiatus, we re-engaged with each other as a better people?

Becoming Better

Which brings us to the second, more important, thing to think about: we, ourselves, as individuals.

Whatever makes us better – introspection, honest self-assessment, meditation, study, prayer – this might be the chance to re-establish some good habits. Perhaps we can open ourselves up to new possibilities, or to abandoned aspirations, while the noise is shut down.

Maybe we acknowledge the good in each other that we take for granted. Say the things that “go without saying”. Learn something new. Bury a stupid grudge. Do some good where it’s needed. Gain insight. Rededicate ourselves to something worthwhile.

Maybe we find ourselves knowing, and liking, who we see in the mirror a little better next month than last.

Ken Bossong

© 2020 Kenneth J. Bossong

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McCoy Tyner, Philly’s Pianist Supreme

Others are doing a good job memorializing McCoy Tyner in widely-available tributes since his passing on Friday, March 6. See, for example, Ben Ratliff’s piece in the New York Times and Dan DeLuca’s in Saturday’s Philadelphia Inquirer. This, then, will not be a comprehensive retrospective of the great pianist’s life or work.

I would be remiss, however, to let the moment pass without expressing appreciation for one of the true masters, and a critical stylistic link between bebop and the avant-garde. Simply put, McCoy Tyner was one of the all-time greats. If you have never heard him, you owe it to yourself.

Among His Influences

Innovation is paramount in Jazz. There are special places of honor reserved for those who create a sound on their instruments that is new, vital, and unmistakably their own. Within a few notes of any recording, there is no doubt when the pianist is McCoy Tyner. He did not come from nowhere, however, and his obvious inspirations constitute a piano Hall of Fame.

Earl Hines is considered an early virtuoso of Jazz piano for his “orchestral” approach to the instrument. That is to say, Hines used unprecedented two-handed skill and facility to unleash all that the keyboard offers. It is no coincidence that Hines is the one pushing a young Louis Armstrong to new heights on some of the latter’s most important early recordings, like “Weather Bird” and the incomparable “West End Blues”.

The Harlem Stride pianists, like James P. Johnson, Willie “The Lion” Smith, and Fats Waller, were so named for the patterns of powerful chords they used to propel their music. Their left hand did the “striding” while belting out the chords that set the foundation for the right hand’s melodic improvisations .

The two high priests of bebop piano were Thelonious Monk and Bud Powell. From Monk, Tyner clearly gleaned the importance of space in music, and the rhythmic and percussive aspects of the instrument. Powell was his hero, though. The Powell influence is unmistakable in the grace, fluidity and melodic majesty of Tyner’s playing. McCoy added to these bop innovations the fullness of his expanded orchestral approach and the propulsive force of his amazing left hand. Thus, he became uniquely capable of creating thrilling tension and beauty.

As explained in an earlier post (“What Makes Jazz So Endearing and Enduring”, 3/4/19), tension and release is one of the most compelling techniques in the music. Tyner’s remarkable ability to build tension, even while creating melodically and harmonically, made him the perfect pianist for a quartet many consider the greatest ever.

The Quartet

John Coltrane made astounding music both before and after his “Classic Quartet”, but there has never been anything like that group – Tyner, Jimmy Garrison on bass, and Elvin Jones on drums. Jones described the group’s interaction as “telepathic”. It’s a good thing they were, too, given the passion, virtuosity, energy, and inventiveness with which they played.

Every Coltrane album on which McCoy plays is a genuine classic. I’ll just mention two. The first of them, My Favorite Things on Atlantic was, as mentioned in a prior post (“Missing The Trane”, 7/18/19), my first Coltrane record. One reason I listened to the title track every day for a year was how often I discovered an idea in Tyner’s solo that developed into something magical in Coltrane’s second turn on the soprano.

It is impossible to present A Love Supreme, as I’m doing in this 55th anniversary year of the iconic Impulse album’s release, without pointing out Tyner’s contributions.

The truth, though, is that you can pick any album from this group’s era in the early Sixties and just sit back in wonder at what is possible in improvised music. In the middle of it all is Tyner’s grounded but relentless attack setting the table for the bristling passion of everyone else’s playing. You can feel Coltrane gearing up for his next solo.

McCoy was the surviving member of The Quartet; his passing will make any presentation of A Love Supreme that much more poignant.

Post ‘Trane

As far as I can tell, there is no such thing as a bad McCoy Tyner recording. Whether leader or sideman, in whatever setting – solo, trio, small group with horns, big band – he guaranteed a level of excellence for the proceedings.

There are Tyner records that will be mentioned by all, like The Real McCoy on Blue Note. (Emails seeking further listening recommendations will be met with enthused reply, by the way.) For now, let’s just mention Time For Tyner, also on Blue Note. As exhilarating as it is beautiful, this is a wonderful example of the special chemistry Tyner had with the extraordinary vibraphonist, Bobby Hutcherson. Other excellent outings feature saxophonists like Gary Bartz, Sonny Fortune, and Azar Lawrence.

Seeing McCoy Tyner live was always a memorable treat, whether as a solo in San Francisco or with a group at the Berks County Jazz Festival. The latter was with a good friend who is a gifted musician in his own right. When the concert was over, we just sat there for a while, speechless. This can happen after experiencing one of the best who ever lived.

Final Note

I have never read or heard a bad word about McCoy Tyner, as a musician or as a person. He has influenced virtually every pianist who has followed him, many profoundly. They have chosen well in selecting a mentor.

The magnitude of such a loss is tempered somewhat by the opportunity (actually, the need) to celebrate the man. And, as always with truly great music, riches await the adventurous listener.

Ken Bossong

© 2020 Kenneth J. Bossong

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Thoughts on Choosing a College

High school seniors and those who care for and about them are in the midst of a process right now that is equal parts exciting and trying. Colleges are announcing their decisions on admissions and financial aid, and families are left to cope with the information arriving daily. Juniors are a year away.

In the course of giving students tips about taking the SAT over the years, I’ve given some thought to what comes after the test scores are in. There is a lot to consider, of course, but having an approach attacking it one issue at a time can make it all less daunting. 

An Approach

What follows can serve as something of a substantive checklist. For those inclined toward a quantitative approach, one could assign a numeric value to each factor that matters. The challenge is to work in a weighing of factors that are most/least important versus high/low scores in the factors. That is, how do you reflect a good but not great score in an important factor as opposed to a great score in a less important factor? 

One approach would be to make a broader range of scores (10 to -10) available for more important factors, and a smaller range (5 to -5) for less important ones. Note the flexibility: the student, (or parent or trusted adviser) gets to decide which factors are most heavily weighted in any analysis. The approach should be flexible; no two students are the same.

Location

Let’s start with one that seems easy: How far is the college from home and how much does that matter to you? Just look up the mileage and we’re done here, right? Maybe not. Consider a student in the Philadelphia metro area evaluating two good schools, one in upstate New York and the other in Chicago. The latter is hundreds of miles further away, but there are dozens of direct flights a day between O’Hare (or Midway) and Philadelphia, and they tend to be relatively inexpensive. Which school is “closer to home”? In short, don’t forget to factor in the ease and expense of getting home.

Is the campus setting urban, suburban or rural? I’ve seen this be a deal-breaker. If you’re a city kid, for example, how do you feel about the college town having exactly one traffic light – and it’s blinking? What if there is one pizzeria and you don’t like the pizza?

Attractiveness of the setting – Does beauty inspire or distract? Does drab depress? Same for weather/climate.

Safety and security – ah, the parents perk up with this one. Every college tour ever points with pride to the Blue Light Phones throughout the campus and how safe it all is. Unless there is reason to believe otherwise (statistical or reliable anecdotal evidence that danger lurks), it is probably reasonable to assume that student safety depends most on the company kept and behavioral decisions made.

Academics

Reputation/Prestige – Is the college renowned overall? Would their degree bolster your resume?

Reality – Does the college deserve to be renowned? Does it deliver the goods? Do its graduates find jobs in their field or get into the grad school of choice? Some schools live on past glories; others are underrated and rising. 

Which departments are strong? Some schools are world-leaders in a few fields and so-so in others. The surer a student is about what the major will be, the more this may matter. Keep in mind that many students change majors, though. When that happens, strength across the board becomes very reassuring.

Obvious areas are class size and student teacher ratios. Will you be taking Bio 101 with 350, or more, of your closest friends?

More subtle, however, is who teaches what. There are prestige schools where superstars who have never met an undergrad roam the halls. Their job is to attract grant money, not teach 18-to-22-year-olds. It’s nice to have Pulitzer Prize winners around, but will most or all of the courses be taught by TAs (teaching assistants)? Is there a commitment to undergrads?

Is there any sort of core curriculum, or may students take literally anything they please? Can a student emerge from four years of time and expense with little coherent education? Are the courses you want and need actually available? What must a student do to enroll in them?

How are mentoring, guidance and placement?  Are there research and internship opportunities? How about special programs – double majors, 5-year masters, relationships with professional or graduate schools?

Amenities

If you’re going to live somewhere four or more years, what’s the living like? How’s the housing; how’s the food?

Dorms – Are they guaranteed and available? This can range from no issue for four years to freshmen being on their own. Their functionality and appeal vary widely from really nice to more suited to Board of Health review.

If you and your friends want to rent a place, does the town feature good, plentiful, reasonably priced housing stock, or is it slumlord city?

Food – Most college students will say most food is uninspired at best, but there are exceptions. If you find one, it’s a plus. Quantity is usually not the issue; you’ll want to hear about quality, variety and healthfulness. Are food plans required or simply available?

Intangibles

Campus Size

Another factor that can make a real difference is size. Some students would not consider going to a college smaller than their high school. Others feel like they went to a factory for 9th through 12th grade and would like nothing better than an intimate, family-like atmosphere. As with everything else here, there is no one correct answer. There are also some subtleties. Being part of a team, club, or other activity with built-in friendships can make a huge campus manageable.

Social Life

People – Are these your kind of people? Is there some fun going on? Are alcohol and other substances essential to the fun?

Fraternities and sororities can dominate social life or not exist at all. Is Greek life desirable?

Facilities – How are the student center, the gym, fields, and other venues? Are there good places to gather, throw a Frisbee or a ball, get a workout, or attend an event?

Speaking of events, are concerts and speakers of renown drawn to campus? Some schools devote resources to get the best; others don’t see the value.

Sports and extra-curriculars – If you play a sport, you know better than I all that is involved in taking it to the next level. Division 1 recruits will have a full-time job awaiting them. Whatever level is appropriate, balancing and integrating any activity into one’s life is worth the effort it takes to get it right. If you’ve always wanted your own radio show in college, make sure the station puts undergrads on the air.

Spiritual life – If it’s a factor in your life, make sure it’s available in the campus community to the extent desired.

Politics – Campuses range from the Far Left to the Far Right. I’d like to think some of them remain more interested in open minds, objective inquiry, and intellectual rigor than indoctrination. If it matters to you, check it out. At least, attend with your eyes and ears open.

Cost

Nothing like saving the best for last, eh? That college is usually outrageously expensive almost goes without saying. This brings the financial aid package up in importance to equal that of the admissions decision. Like admissions decisions, the financial aid offers can be irrational and inexplicable. As I recall it, the process produced an EFC, the expected family contribution, and ours bordered on the preposterous.

In looking at the cost factor, try to include everything in the budget: tuition, room and board, fees, “books” and supplies; travel, and miscellaneous personal stuff. Compare apples to apples among the colleges as best you can.

All financial aid is not created equal. Grants, scholarships, and fellowships are the real deal. While lower interest rates are better than higher ones, loans are not financial aid at all. Loans are debt. Folks have finally begun noticing that bearing a burden equivalent to a mortgage without the benefit of owning a home is a very bad idea. It’s a lousy way for a young adult to launch a career and an even worse way for their parents to approach retirement.

If a financial aid package is particularly disappointing because the school would otherwise be the top choice, consider contacting the school. A sincere, well-reasoned and amicable appeal is sometimes well received. One reason is that colleges and universities like to attain the highest “yield” possible. Yield is the percentage of candidates offered admission who enroll and attend. It is considered one of the most telling indicators of a school’s desirability.

Summing Up

The approach here was to include more rather than fewer considerations. Please tailor to your needs. If, as I hope, you find this helpful, please pass it along to interested others, including next year’s seniors to be.

Resist the urge to believe that there is out there one, and only one, perfect place for every student, and that all others would be markedly inferior. The truth is more likely to be that there are a number of very good placements for most or all students, with varying strengths that make the choice a really close call. If you narrow it down to a few excellent places, you have done your job and cannot make a mistake.

And even if you do make a “mistake”, nobody holds it against anyone for transferring anymore. Indeed, if you buckle down and do well where you are, you may gain entry somewhere that foolishly rejected or wait-listed you the first go-round.

Finally, sometimes this just comes down to chemistry. How do you feel when you step onto campus? If something inside tells you “This is the place”, it may well be.

I used to wish students only thick envelopes, but that’s just showing my age. Now notifications are mostly electronic. But you get the drift. Good luck with all this.

Ken Bossong

© 2020 Kenneth J. Bossong

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I, Citizen

This pause in Other Aspects’ railing against those atop the executive and legislative branches of our government, however deserved the railing might be, focuses on an uncomfortable place: the mirror.

In allowing our supposed leaders to let us down to this extent for this long, we’ve been letting ourselves – and each other – down.

Do we have some excuses? Sure. In a fast-paced, high intensity time, it sometimes seems all we can do to work the job(s), raise the kids, put food on the table, pay the bills, do the errands and chores, and (perhaps) relax occasionally. It feels like a full-time job just to be a consumer in this society, fending off scams, bad deals, cyber-attacks, and other threats to our wellbeing and hard-earned money.

Participating in, or even paying attention to, public affairs may feel like a luxury, but it is not. Whether owing to exhaustion, inattention, ignorance, laziness, cynicism, resignation, or apathy, we citizens cannot afford to be asleep at the switch.

Say What?

We’ve all seen numerous polls in recent years that indicate the public’s mind-boggling ignorance of how we govern ourselves and order our affairs. These depressing reports cover different topics, but generally go something like this:

X per cent [typically well under half] of [citizens, high school graduates, college graduates, etc.] can: 
(a) say how many branches of government there are, name them, or explain what they do; 
(b) name any member of the Senate, the House, or the Supreme Court; 
(c) distinguish between the Declaration of Independence and the Constitution; 
(d) identify any of the amendments that make up the Bill of Rights; 
(e) name any of the protections provided in the First Amendment;  or
(f) explain the concept of checks and balances; balance of power; and so forth.

The Polling Stat that Matters Most: Turnout

Voter participation always is lower than one would hope or expect, especially given the struggle that people who don’t have the vote often must endure to get it. That goes for our ancestors, starting with that Declaration of Independence, through struggles for women’s suffrage and civil rights.

I wish I could say that’s all in the past, but battles over voter suppression are underway across the nation, as a quick Internet search will confirm.

When We Do Vote

Even as we grouse about our elected representatives, we must face the fact that incumbents are reelected so often that an incumbent loss is big news.

If our elected representatives are crooked, stupid, lazy, ignorant, unethical, or lacking in other important ways, whose fault can that be, ultimately, but ours? Who is sending them back to Washington (or the state capitol, or city hall) year after year, rather than home, where they belong?

It’s not just that we should vote them out; it’s our duty. It’s our job as citizens. 

When a political party puts forth an unworthy candidate for office, it’s an insult to all citizens. If the response is a shrug rather than a rebuke at the polls, our democracy suffers.

What’s To Be Done?

Start with education.

Every school district, private school, and library in the US must bolster its program on public affairs immediately, for kids and (especially) adults. Political science, philosophy, and business departments at colleges and universities should make speakers available to address timely, compelling topics for the communities they serve.

Hopefully, we have found better names for the field than “civics”, and more effective ways of presenting the information than whatever turned off poll respondents. Although every minute detail may not be exciting, the array of our interwoven liberties, rights and responsibilities is inherently interesting, at least because it affects all aspects of everyday life. It’s how things work, or don’t work.

The Constitution is one of the most magnificent documents in history. Everyone should understand why and what it means to live under it.

Other Educators

There’s hope if a musical about a “founding father”, Hamilton, is on its way to becoming the most phenomenally grossing play in history. Perhaps those infamous polls would come out slightly better now that so many have seen Hamilton. We’ll see.

Meanwhile, other creative approaches exist to inspire replication or new ideas. One example, (mentioned by a reader of Other Aspects): Recently about 1,500 third-fifth graders in Delaware got to see a live performance of the courtroom scene from Miracle on 34th Street acted out by judges, lawyers and court employees in county courthouses. Sean O’Sullivan, chief of community relations for Delaware’s courts, says in the December 6 edition of Coastal Point newspaper, “We hope to spread a little holiday joy and maybe give them a small bit of insight into the court system as they take in a holiday play.” Bravo! Plant those seeds.

Every bar association (local, state, and national) must redouble its efforts to educate the bar and the public in a non-partisan way. As a national example, the American Bar Association has worked for years to foster the rule of law all over the world. If the average American does not grasp what the rule of law entails, like the importance of checks and balances or an independent judiciary, we need that effort right here, right now.

Between Now and November

One of the most important things any adult will do in the next 12 months is vote. If we’ve learned nothing else from the election of 2016 (see this blog’s post of 4/18/19), the primaries are at least as important as the election.

The election, of course, is on Tuesday, November 3, 2020.

Know when your state’s primary is held. Is there any chance you will not be available to vote in person on either date? If so, what must be done to ensure you can vote in advance or by mail ballot?

Know also the rules: Are you registered to vote? Must you be registered as a member of a specific party to vote in the primary? In New Jersey, one must declare as Republican or Democrat to vote in that party’s primary. I disagree; we should be able to register as Independents and vote in whichever party’s primary we find more important. But I understand the argument. In a year when one party’s nominee is unopposed, that party’s members could vote en masse for the other party’s weaker candidate. As you’ll see below, I’m more incensed about the timing of the New Jersey primary.

Juniors and seniors in high school: How does your 18th birthday fit with the primary, the election, and deadlines for registering to vote? Voting should be a rite of passage at least equal to attaining a driver’s license. In some states, including New Jersey, I understand (thanks to another reader) registering to vote can be streamlined into the driver’s license process.

A Subtler Point

Even better than voting is voting knowledgeably.

We need to examine our sources for news and information critically. Who or what is vetting the reports we’re hearing and reading? Are these sources known for striving to convey factual information, or are they more concerned with pushing an agenda? If we’re getting slanted info, are we verifying or relying blindly?

There are such things as truth and falsehood, the distinction matters, and we deserve the former. Bias and spin are no substitute for the facts, even if they support our pre-conceived notions. Especially if they support our pre-conceived notions. That getting to the truth takes discernment and real effort makes it all the more important that we make that effort.

Reporters, tell us what is actually happening in the world – since we cannot observe it all first hand – not what to think, or how to feel, about it. Not so long ago, clear lines separated fact reporting, op/ed, and entertainment. Each has its place; blurring them has proven a slippery slope. This is another distinction worth restoring to prominence.

In George Orwell’s Animal Farm, the noble, hard-working and self-sacrificing horse, Boxer, accepted all the lies and foolishness of the pigs running the farm. His reward was a trip to the glue factory.

A Pet Peeve

By going first, Iowa’s caucuses on February 3 and New Hampshire’s primary on February 11 exert influence on the winnowing out of presidential candidates disproportionate to these states’ respective size. That is not my pet peeve, though; if we think it cute to have a couple of smallish states flex some muscle every four years, so be it. I suppose.

Super Tuesday, March 3, is where the action is. Fourteen states, including California, Texas, North Carolina, Virginia, and Massachusetts hold their primaries on this one day. Michigan, Washington and Missouri are March 10; March 17 features Florida, Illinois, and Ohio; and the last biggie is New York, Pennsylvania, and Maryland on April 28.  

New Jersey’s primary is on June 2. Yes, June. I guess we should be grateful they get it in before the conventions. For context, a front-page story in the December 8 Philadelphia Inquirer was headlined “Pa. primary just might be pivotal”. Below that: “It’s been years since the state had a real say. Next Year may be different…By the time the Pennsylvania primary rolls around in the spring, the nominating process can seem like a foregone conclusion.” This for a primary 35 days before New Jersey’s.

To put it succinctly: Never in my life have I cast a vote that mattered in a presidential primary . Everyone in New Jersey is effectively disenfranchised. Apparently, the timing of primary elections is set by state statute – NJSA 19:2-1. Why? Good question. In addition to following my own advice in this post for being a better citizen, I’m going to see if I can find out why anyone thinks this is a good idea.

The Citizens’ Job: Keeping It

Among the many roles we take on in life – spouse, parent, friend, colleague, mentor, adversary, volunteer, etc. – few are more important than citizen.

When asked what sort of government the Constitutional Convention delegates had created, Benjamin Franklin famously replied “A republic, if you can keep it.”

If we can’t keep it, or choose not to, I’ll see you at the glue factory.

Ken Bossong

© 2019 Kenneth J. Bossong

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Consider the Kurds and Weigh

This being Other Aspects, I’ve generally avoided writing what others have been writing and, to some extent, what others have been writing about. Today I must make an exception for the topic everyone is talking and writing about.

The welcoming post to this blog on January 13 indicated that I’d address things, both good and bad, that keep me up at night. Well, we’ve hit the mother lode – at least thus far – and it isn’t one of those under-recognized good things deserving to be highlighted.

Abandonment of the Kurds to the Turks in Syria is the single most despicable act of a president in my lifetime.

I can see both sides of most legitimate disputes. I can make an argument for many diverse positions. Not this. There is no argument for this. There is no defense for this behavior.

Two Tendencies

It’s hard not to notice two behaviors in which Donald Trump is remarkably consistent:
First, when called or challenged on a statement or an action, he always doubles down. Always. The more clearly he is wrong about something, the more vociferously he doubles down.

Second, when things are not going well in one area, he says or does something outrageous in another area to divert attention. In the war of attrition that is diversion by outrage, more is better.

Donald Trump did not invent these two tactics, but he has taken them to levels beyond anything I can recall. Each tactic is a close relative to another classic – the Big Lie approach. In telling a lie, tell one so huge that in denying it, your adversary will grant you much of the false impression you wished to create.

Trouble Looming

With the Ukraine affair on the heels of the Mueller Report, things most decidedly were not going well for Donald Trump. Any notion that the Mueller Report was no big deal because it did not seem to deliver what either Trump haters or Trump supporters wanted is greatly mistaken. I will get to this in a future post, assuming it remains as important as I think it is.

Mueller had been overshadowed, though, by Ukraine. Unless the phone call transcript released is simply wrong, there seems no doubt that Trump withheld military aid badly-needed by the Ukraine to resist Russian aggression pending assurances from its president that dirt on political rival Biden would be forthcoming.

Trump’s defense is that he was merely interested, as he must be, in rooting out corruption. What corruption? As VP under Obama, the argument goes, Biden pressured the Ukraine to sack their Prosecutor General (Viktor Shokin) who threatened a company (Burisma) on whose board Biden’s son, Hunter, served.

Aside from the hilarity of the notion that Donald Trump aspired to be a crusader against corruption, the only problem with the defense is that it is exactly the opposite of the truth. Joe Biden joined an international effort pressuring the Ukraine to get rid of Shokin because he was NOT going after alleged corruption, not because he was. (The allegation’s timing is also off, but no need to go there.) Once this became clear, the rumblings of impeachment grew louder.

Other Non-starter Defenses

Two arguments offered to suggest Trump’s behavior wasn’t so bad here are silly. The first, that there was no quid pro quo because he didn’t us those exact three Latin words in the phone call, I’ll assume needs no reply.

The other, that America often conditions aid on receiving something in return is nearly as bad. Are there really people who fail to grasp the difference between (a) requiring something in the nation’s best interest and (b) requiring something in the president’s own personal interest at the expense of a political rival?

If there is any doubt as to how badly this was going for the president, consider the whopper of a diversionary crisis he felt compelled to create.

Catastrophic Treachery

Where does one begin? Among the worst of it: If you’re willing to betray a people who have lost 11,000 men and woman battling ISIS, what ally can you be relied upon not to betray? What ally will you have left anywhere in the world?

An estimated quarter million Kurds and others have been uprooted and are now homeless refugees in grave danger of genocide. The latter is what Turkey’s Erdogan has wanted for years.

Even as this goes on, the recent elimination of al Baghdadi could not have occurred without essential information provided by the Kurds. Such assistance evaporates with the Kurds’ fight for their lives. .

The void we’ve left in Syria is being filled by Russia and Iran. Once again, some of the worst men in the world are delighted with the performance of President Trump. Once again, Trump has acted precipitously, without input from aghast U.S. experts, in a way that benefits the interests of Russia, and harms those of the U.S..

The rebirth of ISIS, once on the ropes in the region through the sacrifices of Kurds and Americans fighting side-by-side, is virtually assured. One thing not assured is that all future confrontations with these violent radicals will be thousands of miles from our shores.

Video is available of our troops hastily leaving the area, with our betrayed allies throwing things at our vehicles. Like many others, military personnel at all levels are so distraught by all of this that they don’t know what to do.

The Donald

How is all this even possible? How could any president blithely betray an ally like the Kurds?

Well, Donald Trump doesn’t need any allies. Why would he? He is the best negotiator ever. He is the greatest deal-maker ever. He is both charming and brilliant. He has no need for briefings from experts because he is the expert. He is the best president ever. He is the best everything ever. He draws the biggest crowds ever. He sifted through the toxic 9/11 rubble with the first responders. The El Paso shooting victims of a madman (whose manifesto quoted Trump slogans) showed him love and respect in a visit. (He wished the reporters he banned could have been there to see it.) The Kurds are no angels, but he has done them a favor, and they are grateful. He is The Donald.

The Worst of Many Flaws

In answer to the question, “How could he do this?” I pose another question, seriously, for your consideration. Have you ever known, met, or even heard of, a person with a case of narcissism as extreme as that of Donald Trump? I mean ever.

He is incapable of empathy, or of introspection, or of compassion, or of remorse, or of grasping the notion that any human being other than himself matters. He cannot learn from his mistakes because he does not make mistakes. (My father used to joke that he’d never made a mistake; he once thought he had, but he was wrong.)

The only note on the musical scale Donald Trump’s can hear or sing is Mi – glorious Me. A repertoire so limited is crippling for a president.

Revulsion, not Glee

I take no pleasure in writing about a President of the United States this way, but there is no choice. If it seems that he is unraveling before your very eyes and ears, that’s because he is. All is the result of combining his two tendencies, above, with the narcissism out of which they are born. The crises he creates are ever worse because he always doubles down. He is always doubling down because he has always just created a senseless crisis. The spiral downward is accelerating.

I’m a little surprised that an instinct of self-preservation hasn’t kicked in to help Donald Trump notice this pattern isn’t working for him very well anymore. By now, most Americans have had one, or many more, of those moments when you wonder to yourself: “What manner of man says (or does) something like this? This is the President of the United States?” Anyway, with Ukraine and the Kurds, Donald Trump seems finally to have hit a low too low, even for him.

From the first announcement of Trump’s candidacy for office, I have found questions regarding his positions on issues amusingly inapt. Donald Trump has no “position” on anything – he barely has coherent slogans – with one exception: he is for anything that feeds his needy and insatiable ego, especially if it does so by increasing his wealth. Nothing else exists. That is Donald Trump’s position on everything.

An analogy comes to mind: Donald Trump is to a common self-centered politician as the compulsive gambler is to the problem gambler. While the latter two (politician and problem gambler) “merely” behave poorly, the former two (Trump and compulsive gambler) are addicted to the rush from doing so. I could almost feel sorry for him, but I’m too busy feeling sorry for us and for our country.

What is to be done?

Consider the Kurds and weigh the options. If inviting genocide for our staunchest and bravest allies in one of the world’s worst trouble spots isn’t enough for the Vice President and cabinet to invoke section 4 of the 25th Amendment, impeachment must proceed. The articles of impeachment should be direct, straight-forward presentations of the gravest high crimes and misdemeanors committed.

Every step of the process must be conducted professionally and ethically by serious, expert adults. It must be strictly on the merits. This includes affording the President impeccable due process. Why? Because (a) it’s the right thing to do; (b) it preempts any reasonable charges of unfairness; and (c) we want the just and correct outcome.

If I’m somehow wrong and the case against Trump isn’t that compelling, don’t impeach him. Bad behavior in pursuit of an alleged wrongdoer doesn’t strengthen the case against him. It’s just bad behavior. Anyone who just wants Trump removed through impeachment, whether or not it is the just and correct outcome, needs to look in the mirror as much as Trump supporters do.

From what we know, though, there’s little risk that’s the concern here. It’s time to take a vote and see who in Congress, if anyone, really is as craven as Trump is. Regardless of party affiliation, those not working tirelessly to limit harm by reversing atrocious policy has blood and irreparable damage to American interests on their hands.

Until recently, I was thinking we could get by just waiting for the voters to deliver the necessary message in 2020. Time is now of the essence, however; what could the next manufactured crisis be, if it is doubling down yet again, from THIS?

Not the Same-old Same-old

Make no mistake: this is not the usual left vs. right, progressive vs. conservative foolishness. It is no embrace of political correctness to know the madness must end. Republicans and true conservatives should be more appalled by Trump’s actions than anyone; many are. Indeed, how dare he bring the party of Lincoln down to such depths? While one does not lightly abandon an incumbent of one’s own party, nothing light occurred here. The damage being done to the Republican Party is enormous and likely to last.

Who’s Watching

Millions of Americans who are independent centrists are noting with disgust the behavior of congressional Republicans enabling these escalating outrages. They cannot be dismissed as the far left. Recognizing Trump’s presidency as dangerous, untenable and indefensible does not make them fans of Elizabeth Warren or Bernie Sanders, either. Far from it. They are the votes needed for anyone looking to win an election, and they are not happy with anybody.

For the system to work, America needs two major parties that are smart, principled and effective in presenting candidates who are honorable and have a clue. Right now, one such party would be a step in the right direction. Shame on us all if 2020 ends up a rerun of 2016, with most Americans (who don’t skip the election) voting for someone they can’t stand. Meanwhile, unfortunately, there’s serious work to do before the election.

Right now, in fact. That’s unless current Republican congressional leaders reduce their infamy by having with Trump the sort of discussion Hugh Scott, Barry Goldwater, and John Jacob Rhodes had with Nixon shortly before his resignation on August 9, 1974. Even if they do the right thing and have such a discussion, is President Trump likely to resign? Probably not; he is The Donald, after all. The more comprehensively his conduct is examined, however, the more Nixon’s conduct is going to resemble child’s play.

Ken Bossong

© 2019 Kenneth J. Bossong

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Talent and Success in Sports, Part 2

A Look at the Peculiar Case of Tanking

The natural expectation is that every team in every sport is doing the best it can to win every game. Despite that, there often comes a point in a season where fans conclude that the home team is going nowhere. This can be when mathematically eliminated from playoff contention, or even earlier, as inevitability sets in. At that point, the fan might be less than heartbroken by losses in the remaining games if that means improved positioning in the next draft. It’s a weird feeling for some, but others have no trouble rooting for the team to lose a few “meaningless” games.

Where this gets really dicey is when teams see the advantage of losing. The more top-heavy an upcoming draft is considered to be – with just one, two, or three special talents available – the more tempting it is to vie for position. Teams that appear disinterested in winning games on their schedule are said to be “tanking”.

While seen at times in all sports, this is a special problem in basketball. Why? With only five players on the court at a time, any one special talent has a chance to be more dominant than in sports fielding teams of nine (baseball) or twenty two (football) starters. (Hockey, with six starters, and constant line changes, is somewhere in between.) The team drafting a Tim Duncan or a LeBron James is likely to contend for championships yearly. Teams too good to draft high but not good enough to contend can get stuck in competitive Limbo. That is, they find themselves drafting good, but not great, players in the middle of drafts – over and over. For those who know they can’t win anything significant, there can be incentive to lose.

The Expression

I can’t prove it, but I suspect the term “tanking” was borrowed by the sports world from slang used in finance. Going back years, I remember hearing stock pundits talking about the market being “in the tank” during bear markets. Poor performance was the defining characteristic; the term’s use as a transitive verb in sports unfortunately reflects the deliberate action involved.

Two Ways to Tank

There are two ways to tank, and the difference matters, at least to me. The first method is simply to lose games deliberately when it is considered beneficial long-term. That is to say, coaches and/or players are either trying to lose or at least not trying hard to win.

Tanking method #2 is much subtler. Here the coaches coach, and the players play, to win. Management’s personnel decisions for that season, however, have been geared to losing now and winning later. For a current example, see the Miami Dolphins. Most famously, Sam Hinke raised this method to an art form while GM of the 76ers. Among the techniques for stockpiling “assets”: drafting players at bargain spots because of injury or foreign players with commitments to play elsewhere in coming years; trading solid, pretty good veterans for draft picks; endlessly searching for diamonds in the rough; and relentlessly seeking to maximize value.

Hinke made no bones about what he was doing; the entreaty to “Trust the Process!” became a rallying cry. It also drew harsh criticism from NBA fans, commentators, and squirming league executives. Controversy even raged among the team’s fans.

Some Thoughts on Purposeful Losing – Tanking Games

Tanking method #1 is, to me, despicable and indefensible. Even as Hinke’s Process (method #2) drew condemnation, teams with all-stars on the roster should have been excoriated for having records nearly as bad as, and occasionally even worse than, the 76ers over these years.

The NBA’s concern about this is very real. At the approach of any season only a half-dozen or so teams have any real likelihood of contending for a title – some years only two or three. In a league where the Have-nots greatly outnumber the Haves, most games (any other than Have vs. Have) become meaningless without genuine competition. Throwing games for future competitive advantage may not be quite as bad as for Black Sox-style payoffs. It’s still consumer fraud, however, and tickets aren’t cheap.

Some Thoughts on Talent Deprivation – Tanking a Roster

Tanking method #2 is more complicated. (It should not be confused, by the way, with ruining rosters through sheer ineptitude. See Chip Kelly’s brief reign running the whole show for the Philadelphia Eagles, for example.) As a general approach to running a team, I’m not a fan. There are some nuances worth considering here, though.

Sam Hinke’s foregoing of current assets for superior future ones was “successful” in making the 76ers’ record truly lousy for years:

2013-14: 19-63    2014-15: 18-64    2015-16: 10-72      

So the team was 47-199 in the three years. It isn’t easy to win 19% of your games for that long in the NBA. It takes drafting injured players and considering many maladies season-ending; drafting foreign players and “stashing” them overseas; and dealing veterans for draft picks.

Taking one transaction at a time, however, Hinke did make some excellent moves. Who’s to say there’s only one way to rebuild a team?  A floundering team doesn’t owe it to anyone to keep journeymen who might otherwise yield a good or great draft pick from a contending team having a specific need. Taking it a step further, there is no need to acquire a solid older player who will make a team only marginally better and not be around when the team contends.

This really is not method #1. To a man, the 76ers almost always played hard for Brett Brown those years, even in games where they had to know they had no chance. Brown tried everything he could imagine to keep his team competitive and wring every bit of ability out of his rapidly changing roster. He could not have been feigning his anguish over all the losing.

Going on memory, a typical game throughout this period saw the 76ers take a lead, however briefly, at some point in the first half. The better team would have to get serious at halftime, play hard, and step up their defense in order to take over the game in the second half. For a while, I watched more of these games than I probably should have. In addition to simply loving the sport, I admired the grit and hoped to see the blossoming of some unheralded talent.

Denouement

As the 2016 76ers closed in on their historic (second worst ever) 10-72, some were beginning to wonder whether the winning part of the Process would be deferred forever. More importantly, influential heads were getting ready to explode. Undoubtedly encouraged by the NBA, the team hired Jerry Colangelo to be a senior advisor above Hinke in the organizational structure. Hinke resigned soon thereafter with a 13-page manifesto.

In the three seasons since, the 76ers have been 28-54, 52-30, and 51-31. They are considered serious contenders for the upcoming season. If health holds up and Brett Brown can coach loaded teams as well as he coached bereft ones, nobody will want to play them in May. Debates among Philly hoops-heads rage to this day on whether Sam Hinke was a genius or a charlatan.

Summing Up

How does a Houston Rockets team that takes Ralph Sampson with the first pick in the 1983 NBA Draft manage to be in position to take Hakeem Olajuwon with the first pick in the very next year’s draft? It’s no coincidence that the league responded with its first lottery system the following year. They’ve been seeking an effective solution ever since.

Perhaps the entire first round of some drafts should be subject to lottery, with less weighting toward badly-performing teams. But then, the problem is no one but Golden State Warrior fans want to see the Warriors draft a Zion Williamson. Theoretically, we all want to see the worst teams have a chance to better themselves, as long as they act with integrity.

Discussion about “upholding the integrity of the game” is not meaningless blather. Why? As much as we enjoy sports, there is little intrinsic value in advancing a ball into something, through something, or beyond a certain point in space. The value comes from the speed, strength and skill necessary to accomplish the feats we enjoy watching.

Something I got from my father is the joy of watching someone very good do something very well, almost no matter what it is. Team sports provide the cauldron of competition in which skill, athleticism, effort and determination are taken to the highest levels. The more incapable I am of doing something, the more exhilarating I find it to watch. As a result, I’m not sure what I admire and enjoy more: baseball and basketball, because I know how hard they are to play well, or hockey, because I can’t conceive of skating well enough to play it at all.

I do know that disinterest in playing as well as one can reduces the exercise to foolishness. Hard, honest competition is the goose laying the golden eggs in the lucrative world of sports.

Assume the only games worth watching in the NBA are those between two Have teams, with all other games involving at least one of the Have-not teams active in the race to the bottom. If there are 12 out of the 30 teams (40%) with any chance of contending for a title, that means 16% of the games will be watchable. If only 6 teams really have a chance (a possibility some years) and everyone knows it, 94% of the games will be unwatchable.

We’re not there yet, but reserve point guards cannot make millions if that assumption prevails. If pride, integrity, and love of the game are not enough to motivate coaches, players and management to try like mad to win, perhaps economic self-interest will do the trick. Ultimately, we fans will vote with our wallets.

Finally, there’s this: the more teams tank, the less likely it is that any given team benefit from tanking.

Ken Bossong

© 2019 Kenneth J. Bossong

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Talent and Success in Sports, Part 1

As sports fans, we love to argue about our head coaches and managers. They don’t hit-and-run enough. They should use more zone defense or pick-and-rolls. The Wide-9 defense – are you kidding me? What’s with these line changes and defensive pairings?

It’s endless and it’s great fun. Coaching really does matter, of course, in varying degrees depending on the sport and various circumstances. While we fret about who is, or should be, coaching our teams, however, we should pay more attention to those serving as general manager (“GM”). They matter even more in the long run.

It’s all about the talent. Specifically, what matters most are talent evaluation, talent acquisition and retention, and talent development – perhaps in that order. The strategy employed in games is usually further down the list.

Talent Evaluation

The basic point is straight-forward: If your scouts and general manager don’t recognize talent at all positions, your team is doomed. This year’s Phillies signed the best free agent, acquired the best catcher and traded for a good shortstop, but their misevaluation of pitching will cost them the playoffs. That’s not to say it’s easy to tell which talent is going to translate to wins at a sport’s highest level. In all sports, teams are befuddled by athletes with ideal size, strength, speed, agility, jumping ability and other measurables who, as it turns out, can’t play.

Football seems to produce “combine stars” who can’t block, tackle, cover, or elude players with inferior times in the 40 yard dash, for example. Projection of success is also quite difficult in baseball, for a special reason. The game requires eye-to-hand coordination and other skills at an unusually rarefied level. Some mashers of the fastball never learn how to hit major-league breaking balls. Pitchers with great arms who can’t throw a quality strike when they must are going to drive managers, teammates, fans, and (ultimately) themselves, crazy.

All sports seem to have a less-tangible “It” factor – as in “She, or he, has It”. For some reason, I think of it as having the “eye of the tiger”, a natural need to get to the goal and finish. This must be factored in with the more measurable stuff.

Teams acquire the most sought-after amateur talent available each year through a draft. The order in which players are selected is generally in the reverse order of the teams’ success in the previous year. It feels exciting to have the first pick in a draft. If your favorite team has very high picks year after year, though, something is wrong with the talent evaluators. The exception is if those great picks are acquired through deft trades.

One other point is that talent cannot be evaluated in a vacuum for a team sport. Chemistry and compatibility of the pieces complicate things. As to the former, adding a sullen superstar to a roster of wacky extroverts might not be a great idea. Similarly, a large, skilled but immobile center will not complement a basketball team full of fast-breaking greyhounds. Or, maybe he or she will, for those times you have to run a half-court offense. Finally, if you’re going to keep your coach and he refuses to run the football, you better get talented receivers and offensive lineman who specialize in pass protection. (Jon Runyan and Tra Thomas would be in Canton if Andy Reid had run a reasonably balanced offense. Reid’s one Super Bowl appearance with the Eagles featured receiver Terrell Owens.)

Talent Acquisition and Retention

The single most important thing any team does is acquire and keep talent. This is done through the draft, free agency, trades, and contract extensions. Each sport is quite different in the rules that matter: draft lotteries, salary caps, trade deadlines, free agency, no-trade clauses, and guaranteed contracts. The more sports you follow the harder it is to keep straight.

Before diving in, it’s worth saying that luck plays a role in all this: winning a lottery; having first pick in a year with a generational talent or two; benefiting from other teams’ mistakes; and being spared major injuries.

Drafts

Serious sports fans often love drafts, particularly those of basketball and football, where the (mostly) college players are better known than the youngsters available in baseball and hockey. Fans develop strong, even passionate, opinions about players available in a given draft, sometimes including players they’ve never closely watched. It’s remarkable.

A favorite recent example involves the consensus best player in the 2017 NBA draft. Before the 2016-17 college basketball season began, the common wisdom was that the draft was fairly deep with no superstars but a lot of very good wing players (guards and small forwards). While some thought a few would be a bit better than the rest, the general idea was that one could pick about a dozen of them out of a hat. Little had changed by the end of March madness.

Shortly after North Carolina was crowned champions, however, I began to hear smatterings of opinions that Markelle Fultz of the University of Washington was the best all-around player in the draft class. This opinion gathered steam as the lottery to determine the exact order of selection approached. The lottery on May 16 resulted in the first three picks going, in order, to the Celtics, Lakers, and 76ers. From that moment, sports talk radio in Philly was dominated with callers and hosts urging the 76ers to trade with the Celtics for the first pick to take Fultz. Such calls quickly became frenzied with demands that the 76ers do whatever it took to secure his rights.

Here’s the thing: this transition from an egalitarian draft to Fultz being obviously and by far the best available occurred at a time when no one had made a shot or grabbed a rebound in weeks. It was based on nothing but mob-think. Further, a fair number of those expressing such strong opinions had either seldom or never seen Fultz play. (When carried at all, West Coast games started at 11 pm in the East, and were more likely to feature Lonzo Ball’s UCLA than Fultz’s UW.)

Anyway, the 76ers gave the Celts a valuable future first round pick to swap 2017 picks, and selected Fultz in June. And the rest is bizarre history. If you don’t know how little and under what circumstances Fultz played for Philly before being traded, it’s worth a quick search. Anyone who can sensibly explain what ailment prevented him from contributing will have your email to KenBossong@gmail.com featured in a future ”Post Scripts” post.

The Celtics happily took the guy they wanted all along, Jayson Tatum, who appears on his way to stardom. The Lakers took their man, Ball, at #2 and he’s been fine, but not quite as good as Kyle Kuzma, whom they got, via trade, with the 27th pick.

Inexact Science

Since drafting is such an inexact undertaking, most fans have their own favorite stories of draft triumphs and gaffes by their teams. How inexact it is varies greatly by sport. While kids certainly can outperform their draft status, hockey teams seem to have a relatively good grasp on young players’ potential. In particular, I have noticed that when hockey pundits anoint someone the next great player, they are seldom wrong. Gretzky, Lemieux, Lindros, Ovechkin, Crosby, McDavid, Eichel and so forth do seem to turn out to be special.

In football, there was considerable debate among true experts as to whether Ryan Leaf or Peyton Manning was the best quarterback in the 1998 NFL draft. It’s reasonable, though, to cut GMs some slack in football where there are 22 starters and special teams to get on the field – and vastly different physical attributes and skills to evaluate.

Then there is baseball with a draft that seems nearly a complete crapshoot. Available are players from high school, college, and all over the world. They play nine different positions, both offense and defense (except for the American League’s designated hitter). There are the “five tools” to consider: hitting, hitting for power, running, catching and throwing. All but the very few are years away from contributing at the Major League level. Yet, as daunting as it is, some teams keep winning and finding new stars over the years despite low draft position. Others pick high every year. Scouting matters.

As already suggested, basketball has its share of draft oddities despite how much is known about the players. Michael Jordan famously was the third pick in the 1984 draft. While nobody blames the Rockets for using the first pick on Hakeem Olajuwon (he’s in the Hall of Fame, where he belongs), the Trail Blazers have never quite lived down the selection of Sam Bowie at #2, especially since he had already hurt his leg badly and repeatedly. Fans of every NBA team have draft picks to rant about, but some more than others. [That sound you hear is long-time 76er fans weeping.]

Trades

Milt Pappas was a perfectly fine pitcher minding his own business with the Baltimore Orioles. In fact, he would make an All Star team three times in his career. If you look him up, though, that is not what you are likely to read first. No, Pappas was the unfortunate infamously traded in 1965 for the great Frank Robinson. All Robinson did in the year after the trade was win the triple crown, MVP, and MVP of the World Series. On his way to Cooperstown, he also became, for years, the answer to a fan-favorite question. “Everyone knows the all-time home run leaders are Aaron, Ruth, and Mays; who’s fourth?”

Ray Sadecki wasn’t quite as good as Pappas and Orlando Cepeda (while great) was not Robinson. Their trade for each other was remarkably similar in lopsidedness, though. It’s no fun being traded for a future Hall-of-Famer.

Ask Rick Wise. His trade by the Phillies to the Cards in 1972 for Steve Carlton was considered reasonably even by many when made. Each had just been an All Star and Wise had pitched a no-hitter in which he had hit two home runs. The sentiment faded as the season unfolded. Carlton went 27-10 with a 1.97 ERA and 310 strikeouts for one of the worst teams in history. (Including Carlton’s record, the Phils were 59-103.) That Wise had a better 1973 than Carlton isn’t even recalled, given the rest of Carlton’s superb career.

Lest anyone think I am bragging about the Phils’ trading prowess, I must mention two horrendously foolish trades, each with the Cubs – one before Wise/Carlton and one after. In 1966, they traded their best pitching prospect Ferguson Jenkins and decent outfield prospect Adolfo Phillips for nearly-done pitchers Bob Buehl (37) and Larry Jackson (35). Jenkins may not be the flashiest pitcher in the Hall of Fame, but he belongs. Then there was 1982, when they were so inexplicably intent on swapping shortstops – the better but older Larry Bowa for Ivan DeJesus – that they threw in prospect Ryne Sandberg to sweeten the deal. It sweetened the deal for the Cubs, alright. Sandberg’s bust in the Hall is not far from Jenkins’.

Sometimes, wacko trades have backstories. No one would trade Wilt Chamberlain (who should be the subject of his own Other Aspects post someday) for Archie Clark Jerry Chambers and Darryl Imhoff, but the 76ers did. For a number of reasons, Wilt had both the clout (threat of jumping to the ABA) and the motivation (disavowal by owner Irv Kosloff of his deceased co-owner Ike Richman’s verbal promise to cut Wilt in on ownership eventually) to orchestrate a trade to the Lakers. Philly took what they could get. A good account is available at https://www.theringer.com/2018/7/9/17547692/wilt-chamberlain-lakers-trade-50-year-anniversary-lebron-james.

How Kobe Bryant became a Laker many years later, after being drafted 13th (!) is another matter of intrigue worth exploring if inclined.

Actually, Wise/Carlton has a backstory as well. Each pitcher felt he was underpaid. So the teams traded them for each other in a fit of pique and then willingly paid each of them what they would have accepted in the first place.

Talent Retention

Once you get ‘em, can you keep ‘em? As already suggested, the GM’s job is not easy. Particularly tricky is what to do when a good or great player approaches free agency near the peak of a career. Baseball and basketball feature a lot of guaranteed contracts. [Sidebar: football, the most dangerous sport, does not – except for star quarterbacks.] How much to pay is no more worrisome than how long to pay it.

The fans screaming for the player to be paid whatever it takes will be the same ones calling the GM an idiot when the long-term guaranteed contract is followed by years of steady decline in health, skill and effectiveness. If salary cap woes are hurting the team, it’s even worse.

The same kinds of considerations are in play when considering whether to sign a veteran free agent.

Talent Development

This is where coaching shows itself, assuming talent capable of being developed has been acquired.

Talent evaluation hasn’t been the current Phillies’ only problem regarding pitching. My view of this season before it started was this: After Nola and Arietta, there were three openings in the starting rotation. There were four promising young arms with good stuff to vie for the slots: Zach Eflin, Jerad Eickhoff, Nick Pivetta, and Vince Velasquez. If two of them stepped up to be solidly professional starting pitchers, the Phils would be in the playoffs and a team nobody would be anxious to play. If three delivered, they would have a chance to contend for the World Series.

Of course, the Phillies should have signed Dallas Keuchel, especially after the cost went down in June. But the young prospects were 0 for 4. All regressed. How is that even possible? For what it’s worth, Eflin has done a bit better since ignoring what coaches told him and I still hold out some hope for Velazquez.

All of which got me thinking: When was the last time the development of any Phillies’ prospect was a pleasant surprise? Or even a highly touted kid developed in the normal course? Scott Kingery still has a chance, hanging in there despite being rushed to the majors to play every position but his own, second base. (Yes, my whole thesis is that GMs matter even more than managers or head coaches, but don’t get me started on Gabe Kapler.)

One Last Factor

There is a level above GM: the owner. Bad owners can kill an organization. As an Eagles fan, I’m grateful for Dan Snyder’s ridiculous stewardship of the Washington Redskins. For years, the only way to get a ticket to a Redskins game was to inherit season tickets. A very close friend gave up his years ago, and tells me he is solicited regularly by the team to sign up for seats on the 40 yard line. The reasons why nobody goes anymore are too numerous to mention. Arrogance and ignorance are a bad combination.

Up Next

Next post will be Part 2 of Talent and Success in Sports: a look at the peculiar case of Tanking. In the meantime, feel free to contact me at KenBossong@gmail.com with a “favorite” stupid draft pick or trade, for mention in a future “Post Scripts”.

Ken Bossong

© 2019 Kenneth J. Bossong

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The Flores v. Barr Cringe Fest

A few days ago, on August 15, the U.S. Court of Appeals for the Ninth Circuit released its decision in the remarkable case of Flores v. Barr. I was not expecting to write on immigration again so soon (see “Immigration – Governing with Nods and Winks”, 5/10/19), but there are aspects of this case so cringe-worthy as to require mention. The good news is that a terrible argument lost. The bad news is that such an argument was made and by whom.

Background – the Flores Agreement

A 1987 class action lawsuit on behalf of minors detained by immigration authorities was litigated for years before being settled in 1997. The consent order settling the case became known as the Flores Agreement, or simply “the Agreement”. It required immigration agencies to hold minors in their custody “in facilities that are safe and sanitary.” Such facilities must also be “consistent with…concern for the particular vulnerability of minors.”

The Agreement gets into some specifics: “Facilities will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor.” There was no dispute that the Agreement remains in effect as a matter of law to this day.

This Case

In May 2016, the plaintiffs filed a motion to enforce the Agreement. They contended that the government continued to violate it by, among other things, detaining class members – that is, minors – in unsafe and unsanitary conditions.

In June 2017, Judge Gee of the U.S. District Court granted plaintiffs’ motion to enforce. The court found that the government was violating the Agreement’s express requirements to provide adequate access to appropriate food and water and “adequate temperature controls at a reasonable and comfortable range.”

The court further found that although the Agreement “makes no mention of the words ‘soap,’ ‘towels,’ ‘showers,’ ‘dry clothing,’ or ‘toothbrushes,’ . . . these hygiene products fall within the rubric of the Agreement’s language requiring ‘safe and sanitary’ conditions.”

Certain Border Patrol stations, the district court found, were violating paragraph 12A of the Agreement by failing to provide such sanitary necessities. Other facilities were depriving the children of adequate sleep. The government appealed to the U.S. Court of Appeals for the Ninth Circuit.

Jurisdictional Quirk

Bear with me here, because it’s worth understanding this point. By federal statute, the Circuit Court of appeals has jurisdiction in this type of case over district court orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

Since everyone agreed that Judge Gee did not grant, continue, refuse or dissolve the Agreement, the Court of Appeals can review her ruling only if it “modified” the Agreement. The Ninth Circuit dismissed the appeal because the district court did not modify (change) the Agreement in its ruling, but simply interpreted it. Here’s why this matters.

The Crux

The Ninth Circuit’s recounting of the government’s position is as follows:

Specifically, the government contends that, by interpreting paragraph 12A in the body of its opinion to require that Border Patrol stations provide the most basic human necessities—accommodations that allow for adequate sleep, essential hygiene items, and adequate, clean food and water—the district court modified the Agreement’s requirement that minors be held in “safe and sanitary” conditions that comport with the “special concern for the particular vulnerability of minors.” We emphatically disagree. 

The government first suggests that the key phrases in paragraph 12A—“safe and sanitary” and “special concern for the particular vulnerability of minors”—add nothing to the enumerated specific requirements found in the next sentence of the Agreement (requiring “access to toilets and sinks, drinking water and food as appropriate,” and so on). The government’s brief maintains that as the enumerated conditions said nothing about, for example, allowing the children in government custody to sleep or to wash themselves with soap, reading the “safe and sanitary” requirement to cover those requirements is a modification of the Agreement rather than an interpretation of it.

Wait, What?

You read that correctly. The U.S. Department of Justice argued before a three-judge panel of the U.S. Court of Appeals that requiring a bar of soap, a toothbrush, and food that is edible “modified” a decades-old Agreement requiring safe and sanitary conditions.

That’s after arguing that “safe and sanitary” adds nothing to the requirements for toilets, sinks, water and food. Therefore, the toilets, sinks, water and food need not be safe and sanitary, even though the Agreement says they must.

The Circuit Court’s Decision

The Circuit Court goes on to demolish the argument as an untenable approach to contractual interpretation. It also dismisses the notion that the phrase “safe and sanitary” is so vague that either it cannot be enforced, or it leaves “the specifics of compliance [with the Agreement’s paragraph 12A] up to” the government. From the opinion:

The district court’s interpretation of the Agreement is consistent with the ordinary meaning of the language of paragraph 12A, which does provide a standard sufficiently clear to be enforced. The court found, among other things, that minors (1) were “not receiving hot, edible, or a sufficient number of meals during a given day,” (2) “had no adequate access to clean drinking water,” (3) experienced “unsanitary conditions with respect to the holding cells and bathroom facilities,” (4) lacked “access to clean bedding, and access to hygiene products (i.e., toothbrushes, soap, towels),” and (5) endured “sleep deprivation” as a result of “cold temperatures, overcrowding, lack of proper bedding (i.e., blankets, mats), [and] constant lighting.”

After so finding, the district court concluded that these conditions fall short of paragraph 12A’s requirement that facilities be “safe and sanitary,” especially given “the particular vulnerability of minors.” Those determinations reflect a commonsense understanding of what the quoted language requires… The district court properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them.

There are other issues in the case, also decided against the government. The opinion is available at http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/15/17-56297.pdf.

An Aside

I am not going after the individual attorney from the Department of Justice who (apparently drew the short straw and) found herself handling the oral argument in this case. The lawyers standing before judges, or justices of the Supreme Court, are seldom the ones deciding which cases to appeal, and on what grounds.

Conclusion (at least for now)

Really, I ask you to pause for a moment to absorb this. A lawyer for the United States of America asked a federal court of appeals to rule that while the Flores Agreement requires detained children to be provided “drinking water and food as appropriate”, it says nothing about potable water or edible food.

This should be the stuff of satire, but I am making none of this up. Most of this post comes straight from the court’s recent opinion. A recording of the oral argument went “viral” – presumably for the equal parts incredulity and dismay with which the judges received such arguments. Consider whether the position taken is worse legally or morally.

Yet, those arguing there are no issues or problems at our borders are clearly wrong as well. Apparently, thousands of people daily find arrest in America preferable to what they face at home. The logistical issues, alone, of dealing with such numbers of people are daunting and must be addressed. According to a July 29 Time Magazine article, 363,300 people from Guatemala, El Salvador and Honduras have been arrested at borders since October. Assuming the number correct and including every day of October 2018, that’s 12,030 people per day for ten months.

Saying we should simply open our borders is almost as silly as saying that our country is “full”. Or that immigrants are a bunch of dangerous criminals. Or that we don’t want hard, honest work done inexpensively and well, when clearly we do. You know the drill.

So, again, we see us paying the price for governing with intellectual dishonesty in this area for many years. In this case, the price is the spectacle of our government taking foolish and despicable positions in formal litigation. Not to mention the suffering at the borders.

Are there folks we need to send home? Yep. Start with the elected members of the executive and legislative branches of our government who refuse to do their jobs. You know, the ones who are too busy pandering, grandstanding, and fear-mongering. Again, we must get adults in the room to hammer out immigration law and policy we can believe in enough to enforce.

Hot off the Press

As I publish this, I understand that the Trump Administration, predictably perhaps, has announced plans today to end the Flores Agreement. Without knowing the details, I’d like to be optimistic and think that’s to replace it with something better. It seems wise to gird oneself for the next outrage, however. Also, I’ll be interested to see how the executive branch would “end” a court order settling a federal class action lawsuit. Presumably there will be new rule-making, with litigation quickly to follow. [Sigh]

Ken Bossong

© 2019 Kenneth J. Bossong

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Missing the Trane

John William Coltrane died 52 years ago, on July 17, 1967. Thus, he is gone about 30% longer than the 40 years he lived. Yet, his stature and impact actually have grown in the half century since his passing. There has never been anyone like him.

It would take a college level course to explain fully why that is; for now, we’ll content ourselves with this post.

The biographical details are available elsewhere, so I’ll just mention the basics. Born on September 23, 1926 in Hamlet, NC, John was raised in High Point, NC. Both of his grandfathers were ministers of the African Methodist Episcopal Zion Church. The year 1940 was traumatic for a thirteen year old John, as he lost his father, maternal grandparents and an uncle within a few months of each other. Immediately upon graduating high school at 16, John followed his mother, who had moved to Philadelphia for better paying work. Happily, it was also a hotbed of music.

Unlike some Jazz stars, Coltrane was not a musical child prodigy. He was a quiet kid, a good student, and very enthused to take on a beaten-up clarinet in school. At 14, he tried an alto sax. Eventually, he was good enough to play in a Navy band, and later to attain gigs on tenor sax with Eddie “Cleanhead” Vinson and Dizzy Gillespie (among others). He was no household name, though, when Miles Davis hired him for his quintet. The year was 1955; Coltrane had just turned 29.

Miles

If Miles heard something special in Coltrane, it probably had something to do with the musical journey Miles had experienced. He emerged as Charlie Parker’s second horn at the age of 19, after Dizzy Gillespie went his separate way. Where Bird and Diz had each been soaring, incendiary virtuosos, Bird and Miles created a classic fire and ice dynamic. Davis presumably saw in young Coltrane another perfect foil for his own understated passion. It certainly worked out that way.

Prestige and then Columbia

The new quintet with an unleashed Coltrane was a sensation based on a series of appearances and albums for the Prestige record label, including Cookin’, Relaxin’, Steamin’, and Workin’. These albums combined compelling versions of ballads, blues, standards, show tunes, and originals. A stellar rhythm section (Red Garland, piano, Paul Chambers, bass, Philly Joe Jones, drums) supported and pushed the horns to expressive heights. It wasn’t long before Coltrane was being mentioned with the first rank of tenors, like Dexter Gordon and the amazing Sonny Rollins.

If asked to name one recording to hear from the years with Miles, almost everyone would say Kind of Blue, understandably. It is probably the biggest selling true Jazz album ever, and with good reason. So, if you’ve never heard it, by all means do yourself the favor. There is an earlier gem not to miss.

When Prestige ran out of gerunds to use as titles for his albums, Miles left for Columbia, where his first record was the storied ‘Round About Midnight. The jewel of the set is Monk’s “‘Round Midnight”. While it is an outstanding quintet’s take on one of Monk’s great compositions, the show-stopper is Coltrane’s solo. His re-imagining of the tune is so strikingly original that people sometimes think of it as being the composition. At this point, it would be surprising to hear a version that does not reference the solo. To listen is to experience the thrilling convergence of virtuosity and creativity that Jazz improvisation can provide.

Monk

The year 1957 was momentous for Coltrane, for at least two reasons. First, he left Miles and the music to kick the heroin habit that afflicted so many musicians of the era. This he did cold turkey. While he was at it, Coltrane also left behind the alcohol he had tried to use as a substitute. Second, when he came back on the scene, John joined Thelonious Monk. Although Trane never stopped learning, the months with Monk seem especially important to his development.

All possibilities regarding space and time in music opened up to him. (The specifics, such as the use of large intervals, would take up another whole post.) The experience could be unsettling. Trane once remarked that there were moments on stage with Monk when he felt like he had “walked into an empty elevator shaft”. For a man with an insatiable appetite for new ideas, sounds and perspectives, though, this was the ultimate graduate school. Recordings of this band had been severely limited, but newly discovered material issued in the last few years, like At Carnegie Hall and Live at the Five Spot, has been superb.

Coltrane rejoined Miles in time to record classics like Milestones and Kind of Blue and to tour. However, a restless Coltrane was ready to lead and to take on a whole new level of innovation.

Taking the Lead: Giant Steps and Favorite Things

Prestige

Prestige got Coltrane into the studio as a session leader with Miles’ rhythm section when the impact he was having on musicians, critics and fans became apparent. The albums that ensued are great examples of what made “hard bop” hard. If you want to hear blues as only master Jazz musicians can do it, I particularly recommended a twelve-minute collaboration of Trane’s tenor with Red Garland’s piano called “By the Numbers” on the album The Last Trane .

Blue Note

Coltrane cut his only album as a leader for Blue Note in September of ‘57, but what an album Blue Train is! In control of the material (four out of the five tracks being his originals) and the musicians, John served notice that something special was unfolding. Then came John Coltrane’s extraordinary stint with Atlantic Records.

Atlantic

First up was the aptly named Giant Steps. Of the seven compositions, all Coltrane’s, six are absolute classics, likely to be covered to this day by top artists. The other, “Countdown”, is in some ways the most indicative of innovations to come. “Naima” is John’s most beloved ballad. The title track remains a piece used by young saxophonists to determine for themselves whether they have what it takes. You get the picture.

My first Coltrane album, and one of my first Jazz records, was My Favorite Things. This was dumb luck in a way; I bought it because I had heard Elvin Jones was a great drummer and drummers were my entre to Jazz. Mesmerized on first hearing, I quickly realized I was hearing something that would change my life. I listened to the title track after school every day for a year, and never failed to hear something new. My education as a listener accelerated. I didn’t yet understand that this piece would take the soprano sax from relative obscurity to prominence in one shot. I just knew that if music could be this intense and this beautiful at the same time, it was for me.

Another Atlantic disc, Ole, would probably not make many lists of Coltrane’s greatest. Yet, all he did on it was to (1) give another tour-de-force on the soprano; (2) first record with Eric Dolphy; (3) portray a culture, as he would later with “Africa”, “India”, “Brazilia”, and so forth; and (4) free the bass.

Wait, what was that last one? How did a saxophonist free the bass? Well, Coltrane hired two great bassists, adding Arthur Davis to Reggie Workman, and turned them loose on the title track. Neither is “walking” his bass, or even keeping time as such, for most of the 18 minute piece. Rather, they serve as horn-like voices; their improvised arco duet just before Trane’s second solo is astounding.

There’s more, of course, from the Atlantic years. Had this output been his last and had he never moved on to Impulse! Records, John Coltrane’s spot in any Jazz Hall of Fame would have been secured.

The Quartet

Impulse! Records’ Bob Thiele gave Coltrane unprecedented leeway in every aspect of producing his albums. Thank God. The result was a long string of astonishing triumphs.

At the core of the artistic and commercial success – at least until the last year and a half or so – was The Quartet. If Jazz fans speak simply of “The Quartet”, they are referring to Coltrane’s group with McCoy Tyner on piano, Jimmy Garrison on bass and Elvin Jones on drums. Each is among the greatest ever on his instrument, but it was as a group that they attained mythic status. Music of such intensity and difficulty required improvisation, musicianship and communication at the highest levels. Both Tyner and Jones have described their interaction as “telepathic”.

By now, the release of every Coltrane album was a major event, eagerly awaited not just by his fans, but by musicians. All wanted to know what would be next, and he never failed to deliver something new and exciting. In fact, following Trane could be bewildering. If asked now which Coltrane record first blew your mind, 50 fans would mention at least 20 different titles. Back when the records were coming out, people could barely absorb what they were hearing before the next one appeared. Then, to see him live was to experience something else entirely. In the time it took to get records in the stores, Coltrane had moved on yet again, even from a brand new album.

One other point about seeing Trane live: the intensity of the performances was legendary. Once the group took off on a piece, they pushed each other to ever greater levels without regard to performance length. Fans hoping to hear My Favorite Things may have gotten their wish, but it bore little resemblance to the Atlantic record. Trane was known to play it for 90 minutes or more, which would drive club owners expecting 60-minute sets crazy. Elvin Jones said there were nights when playing with John was a “near-death experience”. Those lucky enough to have been present and open to such levels of energy and inventiveness heard music they’ll never forget.

Spirituality

In the middle of the great Impulse! albums, between the beautiful Crescent and the compelling Quartet Plays, was A Love Supreme. As a record about which an entire book is written (Ashley Kahn, 2002) and about which I have given 90-minute presentations, this is not the sort of work that lends itself to a quick paragraph. For now, suffice it to say that overstating its impact is very difficult.

Imagine it’s early February of 1965. Like many, you are awaiting the next work of the most exciting, cutting-edge artist around. It turns out to be a nearly perfect four-movement suite, presenting (a) his concept of God and what matters in life and (b) a prayer. No belief system is required to find the music enthralling, but the album has changed many lives. For John, it was the manifestation of a spiritual reawakening that began with his detox in 1957 and would inform the rest of his life.

Beyond

The inexorable trend as Coltrane pushed through every limit to his music was toward the avant-garde (or Energy Music, Free Jazz, the New Thing, etc.). This ultimately led to the gradual demise of the Quartet. Shortly after Rashied Ali joined the group as a second drummer, Elvin left, and McCoy was replaced on piano by John’s wife, Alice Coltrane. Pharaoh Sanders joined the group, bringing his fiery intensity and use of the tenor sax’s upper register to complement the leader’s.

Coltrane may be the only artist who was an essential innovator in two different movements in Jazz. Early on, he took hard bop to its outermost limits with his so-called “sheets of sound”. Many would have been satisfied being the “baddest” tenor in the land, but Trane was just warming up. He took one step at a time freeing his music from unnecessary constraints. 

Trane was not the first avant-garde figure in Jazz (see Sun Ra, Cecil Taylor and Ornette Coleman) but ended up arguably its most significant player and proponent. While he did lose some fans and critics at this portion of his career, his meticulous, incremental approach and unmatched musicianship lent credence to Free Jazz as not only a legitimate artistic movement but actually the inevitable next step after bebop.

The second Coltrane record I bought (soon after MFT) was from this last period. Meditations was recorded on November 23, 1965 and released in 1966. It was the last album with The Quartet intact, but with Sanders and Ali added. The album starts at a level of intensity reached by very few recordings in any genre, and builds from there. I listened to it once, and set it aside for two years. That’s how long it took to listen to what had come before so as to be ready for Meditations. It was time well spent.

A Force for Good

Obviously, there is much to admire in the life of John Coltrane as a musician and as a man. Summarizing from this scratching of the surface:

  • Openness to people, their beliefs, and their ideas
  • Interest in nearly everything – religion, philosophy, mathematics, world culture, and all music – inevitably enriching his music
  • Refusal to settle or be satisfied, where there was more to achieve – including a legendary work ethic (e.g. practicing between sets) resulting in mind-boggling virtuosity
  • Artistic integrity and fearlessness, whether facing withering criticism or praise
  • Confidence with humility and not a hint of arrogance
  • Relentless exploration of sound
  • Creation of entirely new sounds and vocabularies on both the tenor and soprano saxophones, to the point where master saxophonists built their own iconic careers inspired by specific slivers of Coltrane’s canon
  • Innovations in music that we’re still in the process of fully grasping

Consider that Coltrane achieved all this and more in a public career lasting a mere 12 years. It is difficult to conceive what he might have accomplished but for the liver cancer that took him. His last studio album, Expression, especially the piece called “Offering”, portends a next giant step forward as profound as anything before. As it is, he remains a figure of towering impact and significance – and not just in Jazz. As a result, there is a wealth of material to read and music to hear, including an excellent documentary, Chasing Trane (John Scheinfeld, 2017), loaded with commentary of remarkable insight.

In one of his last interviews, with Frank Kofsky in November of 1966, Coltrane said, “I want to be a force for real good…in other words, I know that there are bad forces. I know that there are forces out here that bring suffering to others, and misery to the world…But I want to be the opposite force, I want to be the force which is truly for good.”

Ken Bossong

© 2019 Kenneth J. Bossong