by tyler | Apr 10, 2023 | CNN, opinions
Texas Gov. Gregg Abbott announced this weekend that he plans to pardon a defendant convicted last week in the shooting death of a US military veteran who took part in a 2020 Black Lives Matter protest.
Abbott’s planned pardon is a dangerous attack on the rule of law.
Why is the Republican governor – who pardoned just two people last year – in a hurry to pardon the person who was convicted days ago of fatally shooting 28-year-old Air Force veteran Garrett Foster in the middle of a Texas street?
Abbott’s pardon announcement came after he was goaded to do so by figures on the right – from Fox News host Tucker Carlson to the chairman of the Texas Republican Party to Kyle Rittenhouse. The last became celebrated in right-wing circles when, as a teenager, he shot three people in 2020 – killing two and injuring another – during unrest and anti-racism protests in Kenosha, Wisconsin. (Rittenhouse, who was acquitted on all counts in November 2021, testified that he acted in self-defense.)
The facts of the Texas murder case were fairly straightforward: On the night of July 25, 2020, defendant Daniel Perry was working as an Uber driver in Austin as protests were taking place in the Texas capital over the gruesome murder of George Floyd. Foster, who was openly carrying an AK-47, was one of the protesters taking part in the demonstrations.
According to Austin police, Perry was driving his car when he reached an intersection blocked by BLM protesters. He initially paused for a few seconds to allow some demonstrators to cross the street, but after honking his horn at them, he ran a red light. The prosecution argued Perry initiated the encounter by running the light and turning into the crowd, according to CNN affiliate KEYE. That’s when the confrontation took place between Perry and Foster – both White and legally armed.
There are conflicting accounts as to whether Foster pointed his weapon at Perry or Perry made the first move. What’s undisputed, however, is that Perry fired five shots from his .357 revolver through his car window, killing Foster. Perry fled the scene but later called police to report the shooting, saying he acted in self-defense.
During the trial, the key question for the Texas jury was whether Perry’s shooting was justified under the state’s “Stand Your Ground” law, which allows deadly force to be used by those who feel their life is in danger.
Prosecutors argued Perry had instigated the incident and introduced into evidence messages that suggested the shooting was not a spur-of-the-moment act but a premeditated one. One of the most damning was Perry’s Facebook message to a friend before the shooting that he might “kill a few people on my way to work. They are rioting outside my apartment complex.” Defense attorneys said that Foster had threatened Perry by pointing his gun at Perry.
During the eight-day trial, dozens of witnesses testified, and forensic evidence was presented. After deliberating for 17 hours, the jury rendered a unanimous verdict on Friday finding Perry guilty of murder. (The jury found him not guilty of aggravated assault with a deadly weapon, and a deadly conduct charge is pending with the county attorney’s office.)
Then Carlson and others on the right began to pressure Abbott to issue a pardon, because they didn’t agree with the verdict.
On his Fox News show on Friday night, Carlson called on Abbott to pardon Perry, arguing that the defendant had acted in self-defense – despite the jury rejecting that argument. Carlson even attacked the prosecutor by describing him as a “Soros-funded DA,” invoking the billionaire Jewish philanthropist whose name is often used as an antisemitic putdown by the right. Carlson declared that the verdict “means that in the state of Texas, if you have the wrong politics, you’re not allowed to defend yourself.”
The Fox News host was not alone in clamoring for Perry to be pardoned for killing a protester advocating for Black Lives Matter, an organization that has been repeatedly demonized by the right, with then-President Donald Trump in 2020 calling the words “a symbol of hate” and Rep. Marjorie Taylor Greene in 2021 labeling the movement “the strongest terrorist threat” in the country.
Texas Attorney General Ken Paxton released a statement to Fox News Digital claiming that “the Soros-backed DA … cares more about the radical agenda of dangerous Antifa and BLM mobs than justice.” And another Texas Republican, US Rep. Ronny Jackson, tweeted his demand that Abbott “PARDON Daniel Perry IMMEDIATELY!”
Did Jackson cite evidence showing that the jury had made a mistake? Nope. But like some other Republicans, he dog-whistled the name Soros, saying, “don’t let a Soros-owned Austin liberal DA destroy our justice system.”
As the pressure campaign mounted, Abbott announced that he would ask the Texas Board of Pardons and Paroles – whose members he appoints – to expedite the pardon paperwork for Perry, which he vowed to sign as soon as it “hits my desk.” The governor justified his work for a pardon by saying, “Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney.”
But the jury was aware of the Stand Your Ground law. It reviewed the facts in the case and determined that Perry was guilty. If the verdict is so clearly wrong, then lawyers for the defendant should file an appeal. (Perry’s attorney, Clint Broden, told CNN his client plans to appeal the verdict.)
In fact, David Wahlberg, a former Travis County criminal court judge, told the Austin American-Statesman newspaper that he can’t think of another case in Texas history when a governor sought a pardon before a verdict was formally appealed.
Trial verdicts are determined by judges and juries, and sentences should not be set aside by a governor – apparently for political reasons. What Abbott is doing is not just wrong, it’s dangerous. His pardon, when it comes, is not what the rule of law looks like.
by tyler | Apr 10, 2023 | CNN, opinions
Last week, Donald J. Trump, the 45th President of the United States, became the first former President of the United States to face a criminal indictment.
Despite Trump’s claims of selective prosecution, he will, as prosecutors and commentators have said, be treated like any other accused criminal. That won’t work out too badly for Trump, given that the “any other” here refers only to white-collar criminals.
By virtue of his social standing and the crimes of which he is accused, Defendant Trump is already getting the privileged process and kid gloves extended to white-collar defendants.
Like nearly all white-collar defendants, he has never been subjected to a “no-knock” search warrant, in which shouting officers appear at a property in the middle of the night and force their way in with a battering ram (perhaps ending with the defendant getting hauled into the street still in their underpants).
It is a common tactic used in narcotics investigations designed to catch subjects off guard and prevent them from destroying or concealing evidence — ironically, conduct Trump himself may eventually be accused of.
Likewise, news of the coming indictment dropped on a Thursday and spread quickly on a Friday. Luckily for Trump, he wasn’t immediately arrested and detained through the weekend — a routine practice for defendants who cannot afford to post their bond and have the misfortune of getting nabbed as court personnel head home for the weekend.
He had an opportunity to negotiate his surrender and will not be detained before his trial, a means of ensuring a defendant’s appearance. The practice is typically used for defendants deemed to pose either a risk of fleeing the jurisdiction or a danger to their community. Based on the crimes for which he has been charged, not even Trump’s calls to “take our nation back,” warnings about “death & destruction” that could follow, or personal attacks on judges or prosecutors would be sufficient to require his pretrial detention in New York; the state requires release unless a defendant presents a risk of flight to avoid prosecution.
Even a white-collar defendant’s photograph of himself holding a baseball bat next to a prosecutor’s photo might be easily dismissed as indecorous, but free, speech. A member of a street gang who posted the same image would have, in many courts, bought himself a ticket to jail.
It’s not that we should treat white-collar defendants worse, but many other defendants better.
Of course, there are justifiable accommodations that need to be made for a defendant in the full-time protection of the Secret Service. For instance, a former president being handcuffed or kept in a cell outside the presence of his security detail presents safety and even national security concerns.
Still, many protections that the system builds in for white-collar defendants — all revolving around notice of the actions that will be taken against them and opportunity to order their personal affairs — stem from a belief that white-collar crime isn’t all that much of a public threat.
The concept is not new. In 1939, sociologist Edwin Sutherland first coined the term “white-collar crime,” later describing it as “a crime committed by a person of high social status and respectability in the course of his occupation,” a definition that almost apologizes to white-collar criminals for the pesky inconvenience of criminal accusation.
While today our laws typically frame criminality in terms of specific acts committed, old habits die hard. The image of a (usually White, usually wealthy) man in a business suit simply does not conjure what we think of when we hear the words “criminal defendant.” Cufflinks, not handcuffs, seem more natural on his wrists.
White-collar defendants routinely argue that the stigma they may face, as prominent members of society, ought to affect the treatment they receive. Consider Trump’s former attorney Michael Cohen’s argument at his own sentencing that the loss of his law license and business “amount[ ] to an alternative form of punishment,” or former campaign chairman Paul Manafort’s claim that his criminal ordeal “ruined his reputation.” Both play into the notion that white-collar defendants in the system have suffered enough. Judges often agree.
Moreover, the FBI calculated the annual cost of street-level “property” crime — including larceny, burglary and theft — in 2018 to be around $16 billion. This is a rounding error compared to the $426 billion to $1.7 trillion estimated to be the annual cost of white-collar crime. Even if no blood is shed in a misdemeanor white-collar crime, it can come with a profound social cost. Still, guess which defendant is far more likely to sit in jail for months prior to his trial — either because the law requires it, or because he can’t afford to pay to get himself out?
Certainly, not all crimes, or offenders, should be treated the same. Having spent years as both a prosecutor and senior leader at the Justice Department, I am well aware that some conduct poses a far greater public safety threat than others, and should be dealt with aggressively.
However, in deciding on the dignity and latitude extended to defendants throughout the process, society could rethink its notions of what we mean when we think of “threat,” given that not all conduct that destroys our social order is physically violent. We could recognize that most who enter the criminal justice system, white-collar or not, have reputations, livelihoods and families to protect.
We can take prosecutors at their word that Trump will be treated like every other defendant. Given how society coddles white-collar criminals, he should delight in that.
by tyler | Apr 7, 2023 | CNN, opinions
This week, Idaho passed the first law restricting travel for abortion. Framed as an “abortion trafficking” bill, it criminalizes anyone who helps a minor get an abortion or abortion pills without parental consent. Violators will face felony charges and up to five years in prison.
The law could treat anyone, from friends to grandparents, as traffickers. Even when parents consent, a defendant has to prove it using an affirmative defense, a job that usually belongs to prosecutors. Idaho Republicans presented the bill as a common-sense protection of parental rights. State Representative Barbara Ehardt, one of its sponsors, described it as a tool to “go after those who would subvert a parent’s right to be able to make those decisions in conjunction with their child.”
But make no mistake: Idaho’s bill is part of a broader attack on the right to travel for adults as well as minors, and the stakes of whittling away at that right are higher than ever.
To understand the intent behind the law, we can simply look at where it came from. It draws directly from a model developed by the National Right to Life Committee, a major national antiabortion group, in the summer of 2022. The model stressed that it would not be enough to enforce abortion bans, given that people could take advantage of “existing State laws on telehealth and the proximity of States with less protective laws” to circumvent criminal abortion laws. Idaho’s abortion trafficking law was presented not just as a step to protect parents, but part of a broader way to curtail abortion-related travel.
Starting with minors is a natural way for abortion opponents to test the waters of a legal prospect that — as a state law that openly seeks to restrict the ability to travel from one state to another by choice — seems to challenge a fundamental tenet of both federalism and freedom.
The law directly echoes a federal law on the sex trafficking of minors, which criminalizes those who “knowingly recruit, entice, harbor, transport, provide, obtain, or maintain a minor” for the purpose of commercial sex acts, regardless of whether the minor was forced, coerced or deceived into that act. When Idaho’s law is challenged, as it surely will be, abortion opponents will likely tell courts that if one law is legal, the other must be too.
And they will stress that courts sometimes carve out narrower rights for minors. We often take for granted that minors do not have the right to vote, even if the Constitution protects access to the ballot for adults. In the context of abortion, when the Supreme Court still recognized abortion as a fundamental right, judges upheld laws requiring minors to notify their parents or get their consent before terminating a pregnancy.
Never mind that a similar law would not stand if it applied to adults — the Court at the time struck down a law requiring married women to get their husbands’ permission. If Idaho wants to go after the right to travel, focusing on minors seems to be a logical place to start.
But if attacks on the right to travel accelerate, there will be a far more wide-ranging fallout. The right to travel is venerable: since 1823, the Supreme Court has recognized the “right of a citizen of one state to pass through, or to reside in any other state.”
The Supreme Court also addressed the idea of a right to travel in cases from the 1940s and 1960s. In Shapiro v. Thompson in 1969, it struck down laws setting minimum length-of-residency requirements for those seeking welfare. The Court stressed that “our constitutional concepts of personal liberty … require that all citizens be free to travel throughout the length and breadth of our land uninhibited.” The Court reaffirmed this idea in 1999 in Saenz v. Roe, which struck down a similar durational residency requirement, stressing that the right was so vital that it could be enforced when either private citizens or the government violated it.
But in recent years, as the nation becomes more polarized, the stakes of free travel seem higher. In 2008, author Bill Bishop identified what he called the Big Sort: Americans, he argued, were moving partly to live near those who agreed with them politically. This sorting amplified the nation’s political polarization; by 2004, half of Americans lived in counties where presidential elections were landslides. Since then, the number of super landslide counties — where a president won 80% or more of the vote — almost quadrupled.
If identity-related moves are deepening polarization, it is also increasingly important for Americans seeking to match their hopes for the future with the policies in their states. State legislatures — and often, state policy — have grown far more polarized in recent decades. The culture wars, together with the Covid-19 pandemic, have prompted the migration of Americans to states where they feel a sense of belonging. In the past several years, conservatives tired of mask and vaccine mandates moved from big progressive states to Texas or Florida.
Now, states with harsh abortion bans are seeing the exit of physicians and medical students who do not wish to navigate a new criminal regime. Parents of transgender children are sometimes fleeing states that restrict access to gender-affirming care.
For many Americans, the right to travel can be a kind of deliverance. The ability to move around allows people to avoid sanctions and even criminal charges for choices that are central to their identities. The right to travel lets people seek out like-minded communities and define how they see themselves.
If Idaho’s experiment is a success, other threats to the right to travel will be coming. For now, Idaho is targeting people within the state who are directing minors on how to obtain pills or procedures out of state, but other proposals floated by the antiabortion movement are more expansive, such as bills, modeled on Texas’s SB8, that could allow bounty hunters to sue anyone who has an abortion out of state — even if those actors were following the law in the state where the abortion took place.
If one state can so easily regulate what happens outside its borders, it will gut the freedom for Americans to seek sanctuary in places that suit them politically. It will not be a healthy sign for our democracy.
In theory, voters can opt for the politicians and policies they prefer. But if courts begin gutting the right to travel, states could make it much harder for their citizens to cross borders. They may even try to apply their own criminal laws and civil penalties to out-of-state actors who help people who have crossed state lines.
When the Supreme Court reversed Roe v. Wade, Justice Alito suggested that it was better to leave abortion politics to the democratic process. That way, the court implied, voters in each state could decide to go their own way, and if an issue mattered enough to someone, they could move to a place that reflected their views. But that is not what key abortion opponents in Idaho and other states like it are aiming for. They want to stop citizens from having abortions, anywhere, and for almost any reason. If the right to travel is a casualty of that fight, so be it.
by tyler | Apr 7, 2023 | CNN, opinions
The people of Paris have spoken loud and clear: get electric scooters off of our streets.
Good. More cities should follow suit.
Over the past few years, electric scooters have been brought to Paris and dozens of other cities worldwide by various startups promising an environmentally-friendly individual transport option. What cities have gotten instead is chaos: scooters shooting down sidewalks at dangerous speeds or laying abandoned on pedestrian thoroughfares. Both riders and pedestrians have been injured and sometimes killed.
Scooters sound great in theory. In practice, they’re much more of a menace than a convenience.
The Paris vote was an overwhelming one, if one with very low turnout — only about 100,000 people voted, but nearly 90% of them cast their ballots in favor of a scooter ban, according to CNBC. It’s easy to see why.
When it comes to scooters, there are often not many rules regulating them, and enforcement is spotty. In Paris, for example, children as young as 12 could rent them and helmets were not required. While the city technically banned multiple riders on a single scooter and scooters on sidewalks, it is not unusual in Paris to see snuggling couples on a single scooter, flying down a city sidewalk.
In New York City, there is a scooter speed limit and scooters are supposed to only be in bike lanes and streets. But again, enforcement is lax, helmets are not required for adults and it’s pretty rare to see a New York City cop doling out a ticket to a scooter rider.
Other cites require scooter riders to abide by standard traffic laws, but a walk through many scooter-heavy metropolises makes clear that these regulations are often skirted.
One problem with scooters is that there is no obvious spot for them within urban infrastructure. They go far too fast to be safe on the sidewalk, and in American cities, sidewalks are often already too narrow to accommodate pedestrians, parents with strollers and people who use wheelchairs and other assistive devices. Walking down the sidewalk shouldn’t require dodging electric devices going far faster than a person can move on foot — or risking an accident. And people pushing strollers, on crutches or using wheelchairs shouldn’t have their ability to use the sidewalk curtailed by the scooters that riders routinely leave strewn on the sidewalk.
But scooters are also inappropriate for the bike lane — they don’t move like bikes, which, at least anecdotally, makes them difficult to see and navigate around and can be dangerous for scooter drivers, cyclists and people driving cars. Because they’re a relatively novel form of transportation, drivers may not be looking for them the way drivers are used to looking for bikes. I can’t imagine many cyclists love their already-congested and often-dangerous bike lanes clogged up by scooters. And without mandatory helmet laws for adults riding electric scooters, riders are in even more danger.
Scooters also aren’t suitable for the road. In many cities they aren’t supposed to go very fast, and yet they are permitted on some roadways, competing with cars. In New York City, for example, scooters aren’t supposed to be on roads with speed limits above 30 miles per hour (mph), but scooters themselves aren’t allowed to go more than 15 mph, creating a real conflict. Scooters don’t go fast enough to share space with cars; they go too fast to be safe for unprotected riders; and their riders are not protected against hulking vehicles going 30 miles per hour or more. If it’s car vs. scooter, the car is going to win.
Nighttime is also a dangerous time to be on a scooter; some cities, including Atlanta, have banned scooter riding at night, or seriously considered doing so, because of unnecessary deaths and injuries.
Counter to the idea that this is making cities greener, there’s also little evidence that a significant number of scooter riders would be driving cars or taking taxis if they weren’t on a scooter. Many cities with electric scooters for rent also offer subways and city bikes, two better options for both users and the general public.
I’ve lived in cities overtaken by scooters, most notably Washington, DC. In 2019, my morning walk to my workplace there was often a theater of scooter-dodging, as reckless riders breezed past and I stepped over the many scooters that were simply dumped wherever a rider decided to disembark. Over the course of a year, I saw several injured riders in the road — all luckily seemed ok, but banged up after a collision with a car, bicycle or pedestrian. And I continuously wondered: Why does anyone think this is a good idea?
Parisians have come to their senses and said that it’s not. In American cities where public transport is solid and pedestrians fill the sidewalks, scooters should also see themselves out or be regulated out. And in the many American cities where cars dominate and public transport is lacking, the priority should be building new infrastructure to move people around efficiently and greenly, not allowing tech startups to run roughshod over public space.
by tyler | Apr 7, 2023 | CNN, opinions
The most recent ProPublica story about Justice Clarence Thomas is a powerful reminder that we need a code of conduct for the Supreme Court. Although surely most Americans would hope that justices can be trusted to act ethically, Thomas’ behavior suggests otherwise.
The ProPublica report revealed Thomas’s troubling ties to Harlan Crow, a major Republican donor. According to the report, Thomas has enjoyed a number of benefits over the past 20-odd years of their relationship, including cruises on Crow’s 162-foot yacht, stays at Crow’s properties in the Adirondacks and East Texas, and use of Crow’s private jet. According to the report, “The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.”
On Friday, Thomas said he did not disclose the luxury travel paid for by Crow, who he described as a family friend, because he was advised at the time that he didn’t have to. The Judicial Conference, the courts’ policymaking body, has only recently adopted broader guidelines when it comes to disclosing free trips, meals and other gifts and Thomas said it was his “intent to follow this guidance in the future.”
Regardless, the revelations about Thomas’ many luxury trips have raised inevitable questions about his judicial independence. It doesn’t help that the ProPublica report comes after Thomas failed to recuse himself from cases linked to causes for which his wife has advocated. Given the Supreme Court’s ongoing crisis of legitimacy, this latest report is yet another blow to both the highest court and the republic.
Somewhere, the late Supreme Court Justice Abe Fortas must be shaking his head, wondering how Thomas is getting away with all of this. In 1968, President Lyndon B. Johnson nominated Fortas to be chief justice. But Republicans and Southern Democrats filibustered the nomination, and used his acceptance of a $15,000 honorarium from American University — a practice that was not unheard of at the time — against him. Fortas then withdrew his name from consideration. (Another charge later emerged that Fortas took a $20,000 retainer from a Wall Street financier, who was later imprisoned for securities violations. Fortas, who denied having done anything wrong, resigned from the Supreme Court in 1969).
But there are few signs that Thomas would willingly step down over these revelations. Ultimately, what’s even more troubling than his behavior is the fact that the Supreme Court does not have its own code of conduct, even though there is one that applies to other federal judges. And if the high court doesn’t take the steps to adopt one on its own, Congress should act swiftly to pass legislation requiring justices to adhere to ethical standards.
In 2019, Supreme Court Justice Elena Kagan said Chief Justice John Roberts was seriously considering an ethics code. But four years later, a code still hasn’t been adopted. Roberts, an institutionalist by nature, seemed lukewarm about the idea, claiming that the justices already “consult the code of conduct” that exists for other federal judges, which calls for the avoidance of even the “appearance of impropriety.”
In February, the American Bar Association threw its support behind the idea, warning that “the absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the court.”
And just a few days ago, Senate Democrats — including Maryland’s Chris Van Hollen and Rhode Island’s Sheldon Whitehouse — tried to propose language in next year’s funding bill that would require the Supreme Court to create a transparent process for determining when recusals and ethics investigations were needed.
“It is unacceptable,” Van Hollen said, “that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts, and I believe Congress should act to remedy this problem.”
Numerous top Republicans, however, have opposed the plan or expressed their hesitations. As North Dakota Senator John Thune said in 2022, “I’m uncomfortable with the idea of becoming overly prescriptive … particularly on Supreme Court Justices. They generally have pretty good instincts about when to recuse and when not to.”
Unless the Supreme Court finally takes action and adopts a code of conduct, legislation is essential to strengthen public trust in the high court and avoid questions of ethics or potential conflicts of interest from continuing to haunt the public square. Thomas is not unlike former President Donald Trump in that he has exposed how far powerful officials can go if they don’t feel restrained by the informal guardrails that guided their predecessors. The lack of institutional rules opens the door to officials to engage in bad behavior.
With the new revelations about Thomas, it’s possible the Supreme Court might adopt its own code of conduct. If not, there are also promising signs of bipartisan support in Congress and Senators should seize the opportunity to push for the passage of an ethics code. Unless reform happens, Thomas may not see any reason to desist in this behavior, paving the way for other colleagues, now and in the future, to follow his lead. The results would be disastrous for the reputation of the courts and for the legal framework that is at the core of our polity.
by tyler | Apr 7, 2023 | CNN, opinions
The emotional center of “Air” is an impassioned, inspirational speech which Nike shoe sales exec Sonny Vaccaro (Matt Damon) delivers to try to get then-rookie basketball star Michael Jordan to sign with his company. Hair tousled, eyes intent, Damon stares at the camera and insists that Jordan is the only one at the table who matters. Everyone else, he says, will be forgotten. This is Jordan’s story. The business guys are all just bit players.
It’s a remarkable speech, not because it’s especially well-written (it’s Hollywood boilerplate), but because it openly, and even insouciantly, blows apart the entire premise of the film. “Air” knows that it is telling Michael Jordan’s story. Yet, even as it says so, it sidelines its main character; you never see Jordan’s face or hear him speak except through archival footage.
Instead, the narrative is focused on the shoe execs. “Air” is an extended lesson in how Hollywood can make you care about anyone — and how it nonetheless, over and over, keeps insisting that we care about the same affluent White guys winning for capitalism.
“Air” is set in 1984, at a crossroads for Nike’s basketball shoe brand. Adidas dominates the market, and Nike is thinking of getting out of the business to focus on the running shoes for which it is best known. But our hero, visionary basketball fan Sonny, is convinced that the NBA rookie Jordan has the potential to turn everything around. Sonny risks his own career and the careers of his coworkers on a long-shot attempt to get Nike CEO Phil Knight (played by director Ben Affleck) to pony up the cash to convince Adidas-obsessed Jordan to take a chance on endorsing a personal branded shoe with Nike: Air Jordan. And the rest is pop culture history.
Or at least that’s what you’re supposed to think. There’s no doubt that Air Jordan was immensely popular and became closely associated with Michael Jordan’s personal brand. The inevitable text info blurbs at the end of the film tell you how much he’s still making in passive income from his groundbreaking profit-sharing deal with the company.
But if, as the film keeps insisting, the important thing is not the shoe, but who put their foot in it, then it stands to reason that Jordan could have elevated any company he signed with. Quite possibly he could have convinced Adidas or Converse to share profits at some point too. He had a lot of leverage — and his mother Deloris (Viola Davis) was very determined to ensure her son capitalized on his gifts in every sense.
So the film isn’t about whether Jordan will be great or successful, on or off the court. It’s about which group of business suits will get to ride his coattails. But the obvious question booms: Why on earth should we care?
The movie doesn’t have a good answer. Instead, it offers up the usual Hollywood gimmickry, which it employs to great effect.
The first trick, of course, is casting Damon, Hollywood mega-star and perennial leading man, as the hero. Damon is heavier and older than in the “Bourne Identity” and “Ocean’s Eleven” days of yore — his dazzling good looks have puffed out and sagged, as anyone’s dazzling good looks will. But the ravages of time lend him a dash of character-actor underdog appeal to go with the star power.
Similarly, Affleck’s familiar face alone tells you that Knight is a good guy at heart beneath all the Buddhist aphorisms and corporate ego. If he was really all that bad, would he be played by adorable Affleck?
Of course, the movie skips lightly over Nike’s, long, ugly implication in sweatshop labor, which Knight was forced to address in the late 1990s after years of protest. Knight pledged the company would address abuses and allow outside monitors, and met some success in its endeavors to improve. But the film touches on none of that; it focuses instead on Knight’s large gifts to charity.
But in terms of getting you on Nike’s side, the cynical omissions are probably less important than the equally cynical narrative tropes.
The camera is almost constantly on Sonny, the down-on-his-luck risk taker with a dream. His possibly compulsive gambling is presented as a colorful sign of his boldness and courage. When he goes around Jordan’s agent to speak directly to his parents, it’s not supposed to be an ethical lapse, but an admirable sign of his drive to win. We see his face fall as he worries that he’s cost his colleagues their jobs. But when the end text tells us Nike eventually bought Converse — because Converse was struggling — it’s presented as a feel-good success. You’re not supposed to worry whether Converse salespeople lost their jobs.
In short, you’re supposed to root for Sonny because he’s the star of the picture. Davis, obviously there for her gravitas, shows why she’s an icon, but ultimately her character still serves primarily to make Sonny a more successful businessman and a better person in the process. “Air” is a movie about salesmanship which almost revels in its ability to sell you a hill of beans and convince you it’s an awesome athletic shoe. It makes you think this guy is your guy through sheer shinola.
If Hollywood can make you root for anyone, though, you have to wonder why it insists on getting you to root so consistently for the same guys. Jordan is one of the most iconic, important sports stars in history, one of the best-known Black public figures ever. His mother was famously instrumental in his athletic and financial success. Yet, as a director, Affleck pushes them to the margins of their own story. He tells their tale from the perspective of White guys like himself. Black stars are important here only to the extent that they show the perspicacity of White superfans, like Sonny, and make money for White executives, like Knight (or Affleck).
Again and again, the movie tells you Jordan is the really special one. It makes much of the profit-sharing deal. Knight supposedly proves he’s a good guy and a responsible capitalist by signing off on it (the question of profit-sharing for the people who actually make the shoe is never raised).
These gestures at auto-critique, though, feel like just another effort to make the sale go down easier. Hollywood, in the form of Affleck and Damon, is telling you that you should feel good about sitting through a Hollywood movie starring Affleck and Damon.
“Air” is a slick package. The foot inside the wrapping is the wrong one, though, and it kind of stinks.
