Wednesday, July 18, 2018

The Kavanaugh Nomination

An editorial in The Weekly Standard for July 23, 2018, mentions that Supreme Court nominee Kavanaugh was one of the authors of the notorious Starr Report, and describes that document as "a fair, thorough, and nuanced work of analysis".

Renata Adler's article "Decoding the Starr Report", which first appeared in Vanity Fair in December, 1998, and which is reprinted in Adler's book After the Tall Timber, has a completely different analysis of the Starr Report.  Adler says that the Starr Report is "an utterly preposterous document: inaccurate, mindless, biased, disorganized, unprofessional, and corrupt". She goes on to call it "a massive document in which it is literally impossible to find information by title, date, alphabetical or chronological sequence, or context of any kind".


She summarizes the information about the Clinton/Lewinsky "affair" in a way that makes Lewinsky look like a complete villain who repeatedly stalked and harassed President Clinton. Her analysis is based on a through reading of the Starr Report, and I suggest that if you don't have the time nor inclination to read the report itself (and who in their right mind does), then you should read Adler's article for the detailed information necessary to understand the misguided impeachment effort launched against Clinton by the right-wingers in the House.

Thursday, June 28, 2018

The Colorado Bakery Case

The Supreme Court has come out with its decision on the Colorado bakery case. As expected, it ruled for the baker, a ruling which was inevitable after the hostile questioning heard in the oral argument.

The key to the 7-2 decision is the hostility shown by the Colorado Civil Rights Commission to the "sincerely held religious beliefs" of the baker. His beliefs were disparaged as despicable and derisively compared to defenses of slavery and the Holocaust.

The opinion makes clear that the government must apply the law in a manner that is "neutral toward religion". This is a rather straightforward application of the First Amendment. There is so much hostility toward religion in the way Colorado handled the case that there was no way the gay couple was ever going to win this case.

On the surface the decision appears to be so pedestrian as not to merit much commentary. However, there are some interesting nuances contained in the three(!) concurring opinions. Justice Gorsuch, joined by Justice Alito, filed a concurring opinion stressing that the Colorado Civil Rights Commission held the opposite way in another case. This was a case in which some joker went into three bakeries asking for a cake with messages disapproving of same-sex marriage. All three of the bakeries refused this request, and this guy likewise filed a complaint, which the CCRC denied.

Gorsuch felt the cases were similar and should have been treated the same. However, Justice Kagan, joined by Justice Breyer, field a concurring opinion showing that the two cases were different. Kagan, showing her usual good sense, pointed out that the three bakers in this latter case did not discriminate against the customer, "but instead treated him in the same way they would have treated anyone else." Kagan emphatically concludes that "A vendor can choose the products he sells, but not the customers he serves--no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates. He sells it to opposite-sex couples but not to same sex couples." Notwithstanding this strong statement that the baker Phillips acted unlawfully, Kagan still joined the majority opinion because the state's decision was "infected by religious hostility or bias".

Justice Thomas, joined by Justice Gorsuch, filed another concurring opinion, the thrust of which was to say that the Colorado decision was an abridgment of the baker's freedom of speech. Thomas thus articulates another, independent ground for overturning the Colorado decision.

Finally, Justice Ginsburg, joined by Justice Sotomayor, dissented from the decision. She stressed that "the proceedings involved several layers of independent decision making, of which the Commission was but one". She saw no reason why "the comments of one or two Commissioners" should be allowed to to overcome the basic fact that the baker's refusal to sell the wedding cake to the gay couple was an illegal act.

And what is the lesson we can take away from this case?  To me it is the fact that what is most important in our daily interactions with others is basic respect and tolerance of each other.  These are qualities that seem to be sadly lacking in our current polarized culture. The baker politely and respectfully told the couple that he couldn't provde what they ask. Instead of thanking him for his time and going on down the road to another bakery, they decided to pursue legal action. Unfortunately, this has become an all-too-regular occurrence in our sick society, in which people tend to resort to the courts for every perceived slight they encounter in life. (Just today news reports told of a Georgia man who has called 911 over 100 times for such  non-emergency requests as to get him a glass of milk, to bring him his cellphone, and to fetch his television remote.)

Obviously some kind of a line will have to be drawn, as is the case with many aspects of our civic life. With sales tax there is a line drawn in most states, basically between goods, which are taxed, and personal services, which are not taxed. Thus, your payments to doctors, lawyers, barbers, etc., do not have sales tax added on. Some sort of line such as this will need to be drawn.

Certainly, when I practiced law, I would have thought it outrageous if the government had come into my office and tried to dictate which cases I could and couldn't take on. Government coercion like this has no place under our Constitution.

Thursday, May 24, 2018

On Democracy

Regarding the future of democracy, I have to go back to Jefferson's advice that better education is the answer.  I don't see how anyone can look at the 2016 election and be enthused about democracy, as we had the two worst major party candidates in our history.

To take a step back, let's look at the nomination process. It can be shown rather easily that the problem with the nomination process for both major parties can be attributed to too much democracy. Since 1968, when Hubert Humphrey won the Democratic nomination without winning a single primary, and riots then broke out in Chicago, both parties have undertaken to democratize the process, with increasingly disastrous results. The broken nomination process is good evidence for the idea that there can be too much democracy.

The proverbial "smoke-filled room" has been bashed ever since it was supposedly used to nominate Warren Harding in 1920, but I think we have discovered that party bosses really need to have more say in who the party nominates. If this had been the case, we certainly wouldn't have had the nomination of Trump, and perhaps not Clinton either (though the latter is unclear).

When Jack Kennedy's brother Ted ran for the Senate in 1962, a journalist asked a Massachusetts voter who she was going to vote for. She said Kennedy, because "if he's good enough to be president, he's good enough to be a senator".  We don't like to admit it, but this sort of ignorance is quite common among the electorate. And it predates the internet. People have always been ignorant and gullible; it is not a recent product of this fake news era.

Saturday, May 19, 2018

On Collusion and Commandeering

The word "collusion" has become exceedingly popular of late. President Trump used it 16 times in a 30-minute interview with two New York Times reporters back in December. What those who have been paying attention have learned is that "collusion" is not a legal term. The legal term for the crime being referred to would have to be a conspiracy to violate election laws. Trump insists on his innocence, but the special counsel is still on the job, so the final word has not yet been spoken.

This week the Supreme Court has brought a new word to our attention, "commandeering", in its sports betting decision. In that decision the Court relied on what has been known as "the anticommandeering principle", first set out in two decisions from the 1990s.  That principle says that Congress cannot dictate to state legislatures what they can and cannot do.

Congress can legislate in the substantive area involved; i.e., in the case of gambling it could prohibit all gambling nationwide, and federal law would then take precedence over state law under the "preemption" principle. However, Congress cannot prohibit states from allowing and regulating gambling, which it tried to do with the 1992 in question here.

It is surprising that "commandeering" is a legal principle, while "collusion" is not, but that's what we have learned recently.

It might be surprising to many that Congress does not have the power to dictate to state legislatures. What people need to understand is that we have a federalist system, meaning that power is divided between the federal government and the states, with the federal government possessing only those powers granted to it under our constitution. Indeed, in the recent Supreme Court decision, Clarence Thomas, in a concurring opinion, expresses doubt that the federal government has any power to regulate gambling. It is properly a matter for the states, and this most welcome decision makes that clear.

It seems odd that for 26 years we had a situation where states could legally hold lotteries, which 44 states have done, but could not allow gambling on sporting events. The difference here is twofold: 1) Lotteries are pure chance, while sports betting requires some thought; and 2) Lotteries skim off 50% or more of the proceeds off the top, leaving at most half for the players. Sports bookies, by contrast, only take 5% for themselves, making this a much fairer game to play compared to the ripoff lottery system.

Friday, May 18, 2018

The New CIA Director

Gina Haspel was confirmed yesterday as the new director of the CIA.  While I was initially strongly opposed to her confirmation, due to her involvement with torture and the destruction of the tapes depicting said torture, I have evolved to be cautiously in favor.

The reason is that the alternative would likely be worse. As a 33-year veteran of the CIA, Haspel knows the agency inside out. The alternative would likely be a political appointee, as most are, and therefore someone unfamiliar with how the agency functions.

Also, her involvement with torture occurred at a time when it was considered lawful, and also when she was not the person in charge of the agency. The destruction of the tapes she has explained as necessary to avoid outing CIA personnel.

The Senate confirmation vote was 54-45, with three Republicans opposed, Rand Paul, Jeff Flake, and John McCain, with McCain not voting due to his illness. Since the GOP majority is only 51-49, this meant that six Democrats voted yes. These six are Manchin of WV, Heitkamp of ND, Donnelly of IN, Nelson of FL, Warner of VA, and Shaheen of NH.

Monday, May 14, 2018

My Pilgrimage to Cooperstown

I took a wonderful two and a half day trip last month with my friends Rich and Tom. We left on Tuesday after lunch and drove to Cleveland, where we had a leisurely supper across from the ballpark, and then went to a night game between the Indians and the Tigers. This April has seen much bad weather, with a record number of MLB games being postponed. The night before, the Indians had played a game with a game-time temperature of 33 degrees, a record cold in the history of the Indians current ballpark, now called Progressive Field. This night, however, the starting temperature was 43 degrees, with little wind. While not very good baseball weather, it was at least tolerable. Still, the attendance of 10,078 was only slightly higher than the previous night's attendance of 9,843.

We had seats down the left-field line, which gave us a good view of the Indians' two best players, shortstop Francisco Lindor and third baseman Jose Ramirez. Lindor made a sparkling play in the very first inning, diving to his right to smother a ground ball, and then getting up and nonchalantly throwing out the batter at first. A few innings later, left fielder Michael Brantley made a nice running catch in the left field corner near the foul line. And late in the game, Lindor made another fine play, backhanding a sharp grounder on the first hop, and then taking his time to throw out the runner at first. Jason Kipnis also made a couple of nice plays at second, going far to his right to backhand grounders, and then throwing out the runners on close plays at first. (A guy sitting in front of us was bad-mouthing Lindor the whole game, but backed off a bit towards the end and claimed that it was only his hitting he was complaining about.)

Despite the cold weather, the game was well-played in a crisp 2:47.  There were few walks, few mound visits, and only one error. Ramirez started the scoring in the first with a solo homer. Indians' starter Mike Tomlin made the lead stand up during his time on the mound, though he had to pitch out of trouble a few times, and his strike-ball ratio was so bad that he was lifted after the 5th due to his high pitch count.

Three Indians' relievers shared the next two innings, with the Tigers tying it up in the 7th. Then in the 8th star reliever Andrew Miller came in, to much fanfare highlighted by fire showing on the scoreboard around the phrase "Miller time". Light-hitting back-up catcher Roberto Perez broke the 1-1 tie with a homer in the bottom of the 8th, and closer Cody Allen pitched the 9th for the save, giving Miller a rare win.  This win put the Indians over .500 at 6-5, and at this writing they are in first in their division despite still being only one game above .500.

After the game we drove about an hour and stopped at a motel in Ashtabula for the night. The next day we continued to Cooperstown, driving through the northwest corner of Pennsylvania, then through the finger lakes area of New York, where there were few signs of farming, and arriving at Cooperstown at about 2:00 P.M.

We spent three hours at the museum, then had a leisurely supper and evening. I got to watch more TV than at any time during the past three and a half years. A program on the moose in Canada, and then the Rachel Maddow show, discussing the latest chaos of the Trump presidency.

The next morning was spent at the museum, taking in the part containing the plaques. Then we explored downtown Cooperstown, visiting several souvenir shops filled with baseball memorabilia. Since it was the offseason, the shop proprietors had little to do and were quite happy to converse with us. (Being the offseason also helped enormously with the motel rates.)

The visitors guides at the museum were uniformly helpful and friendly. One talked with us for quite some time, relating the visits from the new Hall members set to be inducted this summer. Trevor Hoffman and his wife cut the cake and served it to the museum staff, the first time this has ever happened, according to the guide. Alan Trammel also impressed the staff, as someone married since he was 20 and very much the unassuming and humble family man.

Chipper Jones was just the opposite, someone the women took a dislike to as he apparently is a well-known womanizer; he's now on his third wife, and has a son born out of an 18-month affair with a Hooters waitress during his first marriage. An interesting factoid about Chipper is that he and his current wife are expecting a child, the due date being on his induction date! They have checked out the Cooperstown hospital and plan to name the child "Cooper".

Some of the museum patrons were also quite friendly. One guy from Boston fired some trivia questions at us; the one I remember is "Who is the only player to play on each of the Sox' first four world championship teams?" I knew this was in the 1910s and made a few guesses, with the guy explaining why each was wrong, before he told us the answer: outfielder Harry Hooper.

We started back, stopping for a fast food lunch in Otego, coincidentally the same exit at which we had stopped for lunch the day before. Our last stop was a gas stop, which was, again coincidentally, in Astabula. Much good conversation the whole way. A most memorable and pleasurable trip.

Friday, April 6, 2018

The State of Invasion of Privacy Law

I have studied three invasion of privacy cases in recent years. I will summarize the teachings of each in an attempt to understand the current state of the law.

1.  Oliver Sipple (1984).  Sipple was a gay man who saved the life of President Ford in 1975. His invasion of privacy suit was unsuccessful for two reasons: one, the subject-matter of the publicity complained of was of legitimate public concern; and two, knowledge of his sexual orientation was already in the public domain due to Sipple's frequent gay rights activism.

2.  Hulk Hogan (2016).  Hogan was successful, putting Gawker out of business for publishing a video of Hogan having sex. The case stands for the principle that, in the Internet era, courts are no longer going to defer to the media to determine what is considered "newsworthy"

3.  Olivia de Haviland (2018). Principle here is, don't sue the movie industry in California.

The Hogan case was such an oddball case, relying as it did on the idea that Hulk Hogan and his creator, Terry Bollea, were two separate entities, that I don't see much precedential value here. I think, therefore, that the right of free speech in this country is still alive and well, though under attack, and would-be plaintiffs still should think long and hard before pursuing a dubious privacy claim.