Saturday, December 20, 2014

Disclaimers of Liability

Interesting case announced by the Oregon Supreme Court this week. A snowboarder who was paralyzed as a result of an accident at an Oregon ski resort was allowed to proceed with his lawsuit, despite a statement by the ski resort that it would not be responsible for any injuries "even if caused by negligence".

I have long believed that such disclaimers of liability have no legal effect whatsoever. The law of torts will decide if you are liable; you cannot avoid liability for your negligence by putting a statement to this effect out to your customers. I first became aware of this phenomenon when parking lot owners would provide you a ticket containing language that they are not responsible for any damage done to your car while it is on your lot.

The idea that this kind of disclaimer of liability would have any legal significance at all is ludicrous. I could put a sign on my car saying that "I am not responsible for any harm I do to you by my bad driving". Would anybody in their right mind believe that that kind of statement would have any legal effect? Of course not.

The fact is that we all owe a duty of care to others whom we encounter in our daily life. If our negligence causes them harm, then we are liable.

Monday, December 15, 2014

12 Bd4 in the Sicilian Dragon

1 e4 c5 2 Nf3 d6 3 d4 cd 4 Nxd4 Nf6 5 Nc3 g6 6 Be3 Bg7 7 f3 0-0 8 Qd2 Nc6 9 0-0-0

This could be called the new main line, in contrast to the old main line of 9 Bc4. Now if black attempts the maneuver Nc6-e5-c4, white is two tempos ahead of the old main line.


In light of the above comment, Black has to get creative. He is willing to sacrifice a pawn for active play.

10 ed Nxd5 11 Nxc6 bc 12 Bd4

Experience has shown that black gets good play if white accepts the pawn sacrifice. Hence, 12 Bd4 is now preferred by better than 2-1 to 12 Nxd5, and in fact scores 60% for white.

12...e5 13 Bc5 Be6!

Black need not fear giving up the exchange, as he gets the vastly superior position if white plays 14 Bxf8. Black would respond with 14...Qxf8, leaving him with good Queen-side attacking chances.

14 Ne4 Re8 15 h4

15 Nd6 Re7 is toothless for white.

15...h6 16 g4 Qc7 17 g5 h5 18 Bc4 Red8 19 Qf2

Here we come to a fork in the road. Black plays three moves here with about equal frequency, with white scoring in the neighborhood of 60% against each. This is a nice achievement for white, but note that he has had to avoid a series of tempting but innocuous alternatives at various points along the way.

Thursday, November 6, 2014

Analyzing the Oregon Ballot Measure Results

The election results in Oregon were definitely a mixed bag. The good news is that the legalization of marijuana passed. The bad news is that the open primary and ID card measures failed, and not just failed, but failed by a 2-1 margin. The open primary measure lost in every single county, while the ID card measure lost in every county but Portland's county. Oregon is simply not as liberal as people assume.

The ID measure was subject to some serious misrepresentations, such as the allegation that the cards would allow illegal imigrants to board planes. To the contrary, it would simply have given the TSA a way to determine the identity of who was seeking to board a plane. That is, it would give the government more tools to keep troublemakers off of planes. Similarly, when the police stop a driver, it would give the police a way to determine the identity of who they were stopping. How 67.4% of Oregonians can be against this is beyond me.

Similarly, how in the world can 68.1% of Oregonians be against the open primary? Do they actually like the bitter partisan politics which currently infects the nation. Or are Oregonians so insulated from the rest of the country that they don't realize how bad things have gotten?

The GMO labelling measure narrowly failed, while the measure for financial aid to students failed with a 58.6% no vote, passing in only two counties.

The inescapable conclusion: the electorate is basically conservative, and very set in their ways. They don't like change, even when that change means progress.

Thursday, October 9, 2014

Oregon's Measure 92, Requiring Labeling of Food Containing Genetically Modified Organisms

This is the kind of thing which makes one feel proud to be living in a democracy. The only opposition comes from big industry, which is doing its usual whining over having to accurately label its products.

There is a growing trend across the country to add this requirement to state laws. Vermont just this year became the first state to have such a law in effect, and Maine and Connecticut have enacted laws which have not yet taken effect.

Conservatives like to talk about how, in our federalist system, the states are supposed to be laboratories in which new ideas can be tried out to see how they work. The idea is that if a new idea works out on the state level, then perhaps it can be implemented on a national basis.

Well, the GMO issue is an example of states fulfilling this experimental laboratory role. The national Food and Drug Administration has declined to issue such a labeling requirement, even though a petition asking it to do so received more signatures than any petition in the agency's history. However, individual states like Oregon do not have to wait for the feds, and this measure will likely be passed overwhelmingly.

The measure would not take effect until 2016, giving industry more than a year to comply. This should give industry plenty of time to get up to speed on the law's requirements.

Wednesday, October 8, 2014

Oregon's Measure 91: Legalizing Marijuana

This ballot measure is as close to a no-brainer as anything on the ballot. Our draconian drug laws have made the U.S. the laughingstock of the world. We imprison our citizens at a higher rate than any other country on this planet; having only 5% of the population, we nevertheless have 25% of the world's prisoners, and most are there because of the stupid drug laws.

Millions of lives have been ruined because of drug convictions. And these drug laws result in persons of color being arrested and imprisoned at far higher rates than whites, even though the rates of drug use among different ethnic groups is comparable.

Legalizing marijuana is a useful first step in reforming our ridiculous drug laws. Washington and Colorado have proven that legalizing marijuana can be undertaken in a responsible manner. There is really no good reason to oppose this measure, and it needs to be passed overwhelmingly. Let the police work on catching real criminals, and leave the weed smokers alone!

Oregon's Measure 88: The Driver Card Initiative

Measure 88 would allow persons who cannot prove they are in the U.S. legally to nonetheless be issued driver cards by the state. The knee-jerk right-wing reaction is to oppose measures such as this, and Portland radio talk show host Lars Larson is strident in his adamant opposition. He has made the point that the TSA would accept these cards as ID's at the airport.

While the ballot measure itself says this is not the case, it appears that Larson is right and that the TSA will indeed accept these cards for ID purposes. My reaction to this is, so what? It does not mean these people will be allowed to fly, it just means that the TSA will have a way to properly identify who is trying to board our planes. The TSA operates under federal law, not state law, and under the doctrine of preemption federal law supersedes state law.

Oregonians should vote for this common-sense measure, which is in the tradition of Oregon as a forward-thinking, humane state.

Oregon's Measure 90: The Open Primary

This measure, on November's ballot  in Oregon, would allow everybody to receive the same ballot in primary elections, and the top two would then go on to face each other in the general election. It is on the ballot as the result of a citizen's initiative, and is a rarity among citizen's initiatives in that the purpose is not to further the private goals of some special interest group, but rather, to make the election process more fair and democratic for all.

The current system is responsible for the paralysis we have in government today, especially at the federal level. Under the current system, candidates in the primaries feel the need to appeal to the party's base, which often means the extremes in the party. The moderate Republicans who have been ousted in the primary by Tea Party radicals is a good example of what can happen under closed primary systems.

The major two parties will undoubtedly lose some power under this system, so they tend to oppose the open primary. But citizens who yearn for good government should support this common-sense reform.

It should be noted that Washington and California already are successfully using this system, so Oregon is a bit behind its neighbors on this issue.

Sunday, October 5, 2014

Possible World Series Match-ups

The teams in this year's MLB post-season allow for some interesting World Series match-ups. We could have the "I-70 series" between the Royals and the Cardinals, a rematch of the memorable 1985 Series. We could have a "freeway series" between the Angels and the Dodgers. We could have a "beltway series" between the Nationals and the Orioles. Had the Athletics not lost the wild card game, we could have had a "bay series" between the Giants and the Athletics. The remaining two teams out of the ten in the postseason are the Tigers and the Pirates, the latter having been eliminated by the Giants in the wild card game. A matchup between these two could have been called the "Rust Belt series".

Thursday, August 21, 2014

What's going on in Mennonite Church USA?

                                    Brief History

To understand the current situation one needs to understand the past. The branch colloquially called the "Old Mennonites", technically known as the Mennonite Church, has existed for many years, the largest group being in Pennsylvania. It was fairly conservative, and many did not believe in voting or getting involved with politics in any form. It had a top-down, authoritarian structure, led by Bishops.

The General Conference branch, which I grew up in, was started in the Midwest in 1860, and included many immigrants from Russia. It was always more liberal, believed strongly in higher education, and had an organization in which the individual congregations had autonomy. Both the OM's and the GC's were subdivided into "area conferences", which were groupings of congregations in the different parts of the country. Decisions not made at the congregational level tended to be made at the level of the area conferences.

In 1989 discussions started between the OM's and the GC's exploring the possibility of a merger. A vote was taken in favor of merging in 1995, and the merger was finally consummated in 2002.

                         The Homosexuality Issue

A support group for gay Mennonites was formed in the 1970's, called Brethern and Mennonite Council for   Lesbian, Gay. Transgender, and Bisexual Interests, or BMC for short. At the Mennonite Church General Assembly in 1983, BMC was approved to have a booth. However, after a few hours this booth was dismantled by denominational "leaders", and BMC has not been allowed to have a booth at any general assembly since. Thus, a chance to open a meaningful dialogue was lost.

In the '80's and '90's, several attempts were made by both the OM's and the GC's to form committees to study the homosexuality issue and come back with recommendations. The results of these studies were always recommendations to be more inclusive and welcoming to gays, and to recommend better dialogue with those favoring a more inclusive approach. In every case, these reports were shelved and the hard work done by the committees was ignored. In fact, delegate bodies of both conferences, in 1986 for the GC's and 1987 for the OM's, approved anti-gay resolutions stating that all same-sex sexually intimate unions are sinful.

In February of 2000, an open letter appeared in Mennonite Weekly Review (now called Mennonite World Review), signed by close to 1,000 Mennonite church members, including many pastors, calling for a more inclusive approach. This came on the heels of the joint general assembly of the two conferences the year before, when the GC's voted to approve the merger, but enough OM's opposed it that the required percentage of approval was not reached.

This should have alerted the powers that be that all was not right with the merger. But the leaders were willfully blind to the realities, and were determined to plunge ahead. One of the main issues that the OM's were leery about was that the proposed new conference's anti-gay stand was not strong enough, so the leaders set about to make them happy. As a result, the 2001 Membership guidelines were promulgated, discussing homosexuality as if it was the main issue worthy of concern, and containing strong anti-gay language. Enough OM's then approved the merger and the merger was then finalized early in 2002. This started a pattern which has continued to this day, the pattern being that large OM churches continually threaten to leave the denomination if their way is not followed, and the spineless Executive Board, fearful of losing the financial support of these large, and usually prosperous, congregations, simply caves in to the threats.

                      Post-Merger Problems

Many of us felt at the time that this merger made no sense, and sprung from a "bigger is always better" mentality, rather than from any legitimate reasons. History since has proved us right in this view.

There has been ongoing controversy over the homosexuality issue, and, sporadically, over the abortion issue. There have been a number of sorry episodes in which dedicated pastors, seeking only to serve their communities with love as Christ has asked us to do, have faced sanctions from the Mennonite higher-ups for officiating at same-gender weddings. Credentials have been removed for some, while for others credentials have remained in place after much "discernment". Congregations have, I believe in every case, supported their pastors, so that at times whole congregations have been removed from membership in the denomination, or have voluntarily left because of the ongoing harassment from the Executive Board.

                  The Theda Good Controversy

To officiate at same-gender weddings is one thing, but to be openly gay as a pastor is another. This issue came to the fore late last year when Mountain States Conference, one of the area conferences from the GC branch of the church, decided to ordain Theda Good, an openly gay pastor, for a Denver church. This has sparked considerable debate and controversy which continues to this day.

On January 24th a letter signed by 150 Mennonite pastors and others pushed for changes in Mennonite policies regarding gays. The inspiration for this was an article by Ron Adams, pastor of a Wisconsin church, which told the poignant story of his brother, who was born gay and ultimately committed suicide after his rejection by the church.

The Executive Director of the MC USA church, Ervin Stutzman, responded with a February 4th letter, acknowledging the Jan. 24th letter and advocating for more dialogue between the two factions. The Executive Board then met later in Feb. and issued their usual gutless pronouncements. They called for "the creation of a listening task force to review the process by which Mountain States Mennonite Conference decided to license Theda Good, and to examine the ways these actions interface with the existing membership guidelines and policy documents" of MC USA.

The Executive Board again met in June, and issued another statement which condemned the licensing of Theda Good, even though the Executive Board does not, and never has had, authority over the licensing decisions of the individual area conferences. Shying completely away from providing any leadership, the Executive Board stated that any changes in Mennonite doctrine would have to be done by the general assembly, which won't be until next year.

                    The Current State of the Debate

A watershed event occurred last month with the publication of the July 21st issue of the "Mennonite World Review". For the first time, a Mennonite of national prominence spoke out clearly against the heavy-handed and illegal actions of the Executive Board. Editor Paul Schrag wrote a strong editorial in which he says clearly that the actions of the Executive Board were wrong.

Schrag talks about the "two competing visions" of MC USA, one with a strong central authority, the other emphasizing local freedom. Schrag then states that "the best path for MC USA today would be to preserve the local freedom that already exists and not expand central authority."

Schrag goes on to label the Executive Board's actions as wrong, stating that "area conferences alone have the right to license and ordain pastors". He says that "Good's licensing deserves the same respect as any other." Further, he states that "People who have observed the pastor's gifts and established a relationship over time should make the decision. A distant national board should not pass judgment."

And finally, he concludes that "Variation is a fact of life in the church. and it is accepted in all these cases but one. The Executive Board should lead a conversation about how the church can deal respectfully with differences rather than rebuking one." Strong stuff, indeed.

In that same issue of the MWR, several letters to the editor made very strong cases for either tolerance or separation. Don and Elsie Steelberg, a retired pastor and his wife from Wichita, Kansas, wrote that "A revision of the Confession of Faith is necessary. These issues need to be decided at a national assembly so that we can choose whether to part ways." Ruth Linscheid, from North Newton, Kansas, writes that "the institutional Mennonite church is in crisis. This brokenness will continue to grow until MC USA lets go of its fear, prejudice and heterosexual superiority." Floyd M. Mast states that "I am glad that Luther, Calvin, Simons and other were willing to be separated." He goes on to say that "Perhaps it is time to allow for separation in peace and friendship. Both sides take their beliefs seriously, so why pressure them to bend."

Perhaps the most thought-provoking letter was provided by Don Nofziger, of Milford, Indiana. Nofziger says that the GC's and OM's "decided to live together without getting married". What he means is they attempted a merger without resolving their very different forms of organization, with the OM's having a "top-down, bishop-led" system, while the GC was "congregational". He concludes that "Perhaps we need to let area conferences be responsible for themselves....This is not according to the original vision, nor is it the ideal. But it may be the best we can do presently."

What would make Nofziger's vision work is that few of the area conferences from the old congregations ever merged with each other. (I can find evidence of only one such instance--the Central Plains Conference was formed from the GC Northern District Conference and the OM Iowa-Nebraska Conference.) So, it might be workable for the area conferences to be allowed to have their proper autonomy. But, will the Executive Board, dominated as it is by OM's, ever stand for that? Not likely.

The stark difference between the two branches is seen in the different responses of the area conferences in my area of Ohio, both of which had annual meetings this summer. The GC Central District unanimously passed a resolution supporting Mountain States in its licensing of Theda Good, and calling for an approach that is "relational rather than punitive". By sharp contrast, the OM Ohio Conference had a resolution calling for the removal of Mountain States Conference from membership. The vote was 163-101 in favor, a 61.7% vote but still short of the two-thirds needed. So adamant were the anti-gay forces, that the delegates had to vote three times on different measures regarding the licensing of Ms. Good.

                    What about the future?

There seems no hope at all for MC USA to continue as a viable organization. The delegates can vote next summer to separate and go their separate ways. Absent that, we will have years and years of conflict and gradual erosion of support as one congregation after another gets fed up and leaves.

This perhaps might be a cause for alarm, but retired pastor Lynn Miller, who lives in the Bluffton, Ohio area, made a cogent comment when Executive Director Ervin Stutzman appeared at a town hall meeting in Bluffton in June. When Stutzman said that "The homosexuality issue is threatening to tear the church apart", Lynn immediately piped up and said, "No, not the church, the institution." The point is that God's church is alive and well, regardless of whether the institutional church is functioning or not.

On the issue of people or congregations threatening to leave, Lynn has made a very cogent online comment. He states: "From my own pastoral experience I have come to believe that anyone who threatens to leave, be it a person, congregation, or entire conference, has already emotionally left. The best response is to say, 'Thank you for leaving, we have wasted way too much time responding to your threats, and we need to get back to the business of being the people of God doing the work of Jesus as we understand it. Goodbye, and God bless you.'”

When one embraces this perspective, the importance of the institutional church fades into insignificance.

            So, what does the "Confession of Faith" actually say about homosexuality?

What is so odd about this whole controversy is that the Confession of faith never even mentions homosexuality! Both sides of the controversy assume that it does, and that the Confession needs to be changed if the conference is to go in a different direction.

 The sentence in question is the one which says that "We believe that God intends marriage to be a convenant between one man and one woman for life". The footnote to the sentence refers to two passages: Mark 10:9, and 1 Corinthians 7:10-11. Neither of those passages says anything about homosexuality! The thrust of those passages is that marriage should be for life, and that remarriage after divorce is forbidden. Then if you look at the commentary for that section of the Confession, you will see that the commentary also says nothing about homosexuality.

Monday, August 18, 2014

What about the Ferguson Curfew?

Two days ago, after the Missouri governor announced the midnight curfew to go into effect that night in the town of Ferguson, Missouri, MSNBC had a panel of commentators who made the ridiculous allegation that the protesters' "First Amendment rights ended at midnight". They all thought it was just horrible.

We are talking about a host, three commentators there with him, and then another one at a remote location on the west coast. All agreed with the sentiment expressed above.

This is one of the stupidest things I have ever heard on a national network. Anybody with half a brain knows that there are all kinds of limitations on free speech; just think of libel laws, laws against blackmail and extortion, laws against making terroristic threats, disturbing the peace, and on and on. The First Amendment has never meant that we have the right to say anything we want, at any time we want, at any place we want, in any manner we want, at any decibel level we want, and so on.

I could go on with numerous examples, but the point has been made. The point of the First Amendment is that anybody with a political message has a right to get that message out. The protesters in Ferguson can protest all they want from 5 AM to midnight. If their point has not been made in those 19 hours, perhaps they should go home and reconsider their approach to make it more effective.

Thursday, August 7, 2014

Rand Paul's Lies

Let me say at the outset that there is a lot I like about Rand Paul, because I have a strong libertarian streak in me. But what I admire most in a public figure is not his or her views, but his or her's honesty, personal character, and personal integrity. This is why the public figure I admire most from my lifetime is Barry Goldwater.

Two troubling lies have emerged from Rand Paul's public statements recently. Several weeks ago, he told Casey Hunt of NBC News that he never opposed the provision in the Civil rights law banning private businesses from discriminating. His exact quote was "I never said before" that he opposed this.Well, Rachel Maddow of MSNBC showed numerous clips of Rand Paul saying exactly that, that he did oppose this provision, because it infringed on private property rights.

Then just this week, Paul says that he never opposed aid to Israel. Well, CNN came up with a clip where he said quite clearly that he did.

Why in the world does a politician lie when his statements can be so easily disproved? This will remain a mystery to me, I suppose. Where is the personal integrity these days?

Monday, August 4, 2014

"The Impeachment and Trial of Andrew Johnson", by Michael Les Benedict

This is a scholarly monograph, containing 360 footnotes. The author studied contemporary newspaper accounts and private correspondence from the participants to put together this detailed account of the efforts to impeach Andrew Johnson and remove him from office.

The author's mission with this book is to correct what he perceives as history's overly unkind treatment of the radical Republicans who sought to remove Johnson from office. He states that the modern view is that he Republican efforts were well-meaning, and, if anything, did not go far enough. His sense of this trend is that the studies of reconstruction in general are now more kind to the Republicans, but that the Johnson impeachment is still tainted by the original harsh view, an alleged inaccuracy which Benedict seeks to correct.

Even taking this account at face value, the author's conclusions are not supported by the facts, by the law, or by good political sense.

Dealing with the latter first, we note that the original impeachment effort, in December of 1867, failed miserably, with the final vote being 108-57 against impeachment. However, by February 24, 1868, the situation had changed so dramatically the the House voted overwhelmingly to impeach the resident. And what had changed during the interim two-month period? The answer is that Johnson had attempted to remove Secretary of War Edwin Stanton from office, in apparent violation of the Tenure in Office Act.

From a political standpoint, this impeachment effort seems absurd, with an election coming up later that same year. Why not simply vote Johnson out of office in the upcoming election?

From a legal standpoint, the action was quite dubious because it is doubtful that the Tenure in Office Act even applied to Johnson's firing of Stanton. The Act only covered cabinet members "for the term of the president who appointed them and one month thereafter". Since Stanton had been appointed by Lincoln, not by Johnson, Johnson's defenders argued that he was not covered by the Act.

The Republicans responded that the "term" within the meaning of the act was still in effect, since Lincoln's second term was 1865-1869. They also argued that by allowing Stanton to continue as Secretary of War, Johnson had in effect "reappointed" him, and was therefore covered by the Act.

Resolution of this issue was difficult, because the Tenure in Office Act was a product of a compromise crafted in a Senate-House conference committee to reconcile the differences between the two bodies, and nobody was quite sure what the intent of the final outcome was with regard to the Johnson cabinet. Benedict admits that the only historian to delve into this issue intensively has concluded that the Democrats were right on this issue.

Another argument used by the Republicans was that by submitting the proposed removal of Stanton to the Senate for its approval, in conformity with the requirements of the Tenure in Office Act, the president had admitted that the Act applied to his cabinet, and he should therefore be estopped from later denying the Act's validity. This argument is laughably weak, and yet Benedict comes back to it over and over again to support his weak position on the impeachment question.

The fact is that I can act in conformity with a law, even while retaining a belief that the law does not apply. There is indeed a legal concept of estoppel, but it has no application to this case. Estoppel applies to the situation in which one party has materially changed his position to his detriment, in reliance on my actions, and this reliance is reasonable; in that situation I may then be estopped from changing my position.

A further augment is that even if the Tenure in Office Act did apply to Stanton, the president has the right to remove him if he had an honest belief that the law itself was unconstitutional, and the courts would then decide the question in due course. Of course, the argument that the Act was not constitutional is quite strong, since part of the president's executive function is to remove people working under him. Yes, the Senate is constitutionally empowered to advise and consent to nominations to cabinet posts, but the constitution says nothing about any right of the Senate to block removals.

Surely, then, the Act must be considered unconstitutional as an infringement upon the separation of powers contemplated by the constitution.  However, the Republican position was that the president had no right to disobey a law merely because h believes it to be unconstitional. In the words of Iowa congressman James F. Wilson, "If an officeholder believes he cannot in good faith execute the law as his duty requires, he must resign."

We have seen that the impeachment grounds were weak, whether they be viewed from a political standpoint, a factual standpoint, or a legal standpoint. But the most interesting issue is the larger one regarding he meaning of the impeachment clause in the constitution. This issue arises because of the vagueness of that clause, which provides for removal from office for "treason, bribery, or other high crimes and misdemeanors". Since the meaning of the phrase "high crimes and misdemeanors" is obscure there is obviously room for varying interpretations.

The narrow view of this clause is that a president can only be removed for an indictable offense. The broader view is that espoused by congressman Gearld Ford in 1970 when he sought to impeach Justice Douglas, Ford's view being that "an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history".

Benedict reveals his bias on the issue when he states: "Those who espoused the narrow view had an extremely difficult task in sustaining it, because in fact it was a novel argument, running counter to precedent, the overwhelming weight of American legal authority, and logic."

What Benedict is espousing is that the president shall serve at the pleasure of the Senate. In other words, a conversion from our system to a parliamentary system, with impeachment being comparable to a "no confidence" vote in the British system. This is obviously contrary to logic and common sense. It would mean the legislative branch would be supreme, rather than one of the separate but equal branches contemplated by the constitution.

The precedent Benedict referred to is indeed there, but it does not support his position. Supreme Court Justice Samuel Chase was impeached by the House in 1804 for his conduct in trying cases under the Sedition Act. The clear pattern of misconduct resulted in eight Articles of Impeachment voted by the House against Chase.

As described in Irving Brant's book, "Impeachment, Trials and Errors", Chase was a bad judge, whose conduct was "unfair, partial, biased, and oppressive". The issue, then, was clearly framed: are bias or incompetence proper grounds for impeachment and removal from office, or must a crime be proven? The Senate in the end recognized that the constititution did not make honest error impeachable, and Chase was acquitted on every count. One vote was unanimous, and the worst vote for chase was 18-16 for conviction, still well short of the two-thirds vote required for removal from office.

The Senate in the Chase case recognized in the end that removal from office for political reasons was not proper. Why, then, should it not be even more clear in he case of President Johnson? Chase had clearly violated proper judicial ethics by his abandoning neutrality and in effect serving as both prosecutor and judge, and doing so for strictly political reasons. President Johnson's conduct falls far short of that, and he was well within traditional prerogatives in wanting cabinet members of his own choosing.

The seven Republicans who voted against removal of Johnson from office have been hailed as heroes, since every one of their votes was needed to avoid conviction. Six of the seven filed formal opinions and all felt that impeachment should only result from "positive violations of the law". Benedict holds a different view, and attempts to poke holes in their stated reasons for voting against conviction, and to strip them of their hero status.

Benedict's problem is that he cannot see the forest for the trees. He nitpicks about various tings Johnson did to thwart the will of Congress concerning reconstruction, but he fails to see the bigger picture. As pointed out by Brant, the constitutional convention specifically considered whether to include "maladministration" as a ground for impeachment; Madison objected to that proposal, stating that "so vague a term will be equivalent to a tenure during the pleasure of the Senate". The attempt was then abandoned. In light of that, Benedict's view of the role of impeachment in our system makes little sense.

Nevertheless, Benedict's book is valuable if the reader is simply seeking to learn more about what exactly happened regarding the impeachment of Andrew Johnson, which was my purpose when I read this book.

If the reader is seeking guidance on the proper role of impeachment in our system, I recommend "Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson", by former Chief Justice William Rehnquist. Rehnquist gives a lot of historical background, and arrives at the view of impeachment advocated in this review.

Rehnquist looks at the results of the Richard Nixon impeachment in 1974, and concludes that the result was entirely consistent with the view of the seven Republican Senators who voted against the removal of Andrew Johnson. The House Judiciary Committee considered five articles of impeachment against Nixon; however, only three of them were adopted, while the other two were rejected as not representing clear and serious abuses of presidential power. The Senate vote against the removal of President Clinton in 1999 is also in line with this standard.

Thursday, July 17, 2014

The Wichita "Summer of Mercy" in 1991

In cleaning out some old files recently, I came across a file of newspaper clippings I saved from the summer of 1991, in which Operation Rescue invaded Wichita and subjected us to daily and never-ending protests against a local abortion clinic.

What jumps out at me now, 23 years later, is the story of three judges who became involved in this mess, one judge from each of the three levels of the judiciary. The first is Pat Kelly, a federal judge who was a robust, activist judge who cared deeply about the law. He issued an injunction regulating what the protesters could and couldn't do, and then it was his thankless task to try to enforce the injunction. The task was thankless because the demonstrators would be released and go right back and break the law again, and Judge Kelly became totally frustrated, as you might expect in this situation.

A Municipal Court judge, Harold Flaigle, was equally frustrated, as the run-of-the-mill city trespassing cases wound up in his court. He had hundreds of such cases every day during the height of the protests, and, by his own admission, was completely depressed at the futility of it all. He would release people, who would then be right back in his court within days.

The oddest example is state district court judge Paul Clark, who up until this point had been a highly respected judge with a distinguished record. But for some reason he completely fell of the deep end on the abortion protest issue. Twice Judge Clark was reversed by the Supreme Court when he made rulings that just totally ignored the law. Once he ruled that life begins at conception and that a protester was therefore legally justified in breaking the law. In another case, an appeal from Municipal Court in which the defendant was a repeat offender and therefore subject to enhanced penalties, Judge Clark inexplicably ruled that the city ordinance mandating enhanced penalties was unconstitutional, without giving any reasons explaining how he reached this conclusion.

In 1993 a protester named Shelley Shannon shot the abortion doctor, and she was charged with attempted murder. Judge Clark, as head of the Criminal Department, assigned himself the case, as had been his pattern with cases involving abortion. When his rulings in the pre-trial phase of the case became so bizarre and indefensible as to make the court system a laughingstock, the overall head judge, Michael Corrigan, took the case away from him and handled the trial himself. It took the jury only an hour to convict the defendant.

Actually the reason for Clark's aberrant behavior can be guessed at. It was well known that Clark was angling for a position on the Court of Appeals or the Supreme Court during the early '90's. It so happened that at the time we had a Democratic Governor, and one who was pro-life. It seems clear that Clark, a Democrat, felt he could finagle the appointment he desired with his bizarre rulings.

Also found in my files was a letter I had published in the December, 1992, issue of the ABA Journal, expressing strong support for a recent action by the ABA House of Delegates in taking a stand in favor of abortion rights. A fellow Kansas attorney, Philip Ridenour, weighed in on the other side of the issue in the February, 1993, issue of the ABA Journal. Mr. Ridenour's position was that abortion, like capital punishment and the decriminalization of marijuana, is not a legal issue, but rather a "moral, religious, and cultural issue", and the ABA therefore had no business commenting on it.

Since Mr. Ridenour was kind enough to send me a copy of his letter, I am moved to offer this belated response:

It is obvious from the discussion of the three judges above that abortion is very much a legal issue. Legalities were involved here, in that the law of the land was being blatantly disregarded and women's constitutional rights were not being adequately protected from the harassment of these out-of-state protesters. Lawyers have special insights into this sort of situation.

The same holds for the marijuana issue. We lawyers have seen what our stupid drug laws are doing to the judicial system, flooding it with cases which do not belong in the court system, and flooding our prisons with people who don't belong there.

The same holds for the capital punishment issue. We lawyers have special insight into what these cases do to the legal system. We know why it is that it costs more to execute someone than it does to hold that person in prison for the rest of his life. We lawyers have special insight into all the vagaries of capital punishment: the disparate treatment of minorities, the differences in how cases are prosecuted from one jurisdiction to the next, the problem with publicity-seeking DA's trying to make a name for themselves, etc.

So, while I understand Mr. Ridenour's point, his point is not well-taken because it does not stand up to scrutiny.

Wednesday, July 9, 2014

Yankee Fan Andrew Robert Rector files Ten Million Dollar Lawsuit?

What in the world has this country come to? This clown is caught on camera in a very public event, a Major League baseball game, sleeping in the stands. And he claims he has somehow been damaged by this?

This ridiculous lawsuit will be thrown out of court faster than you can say "Jack Robinson". What it says about our litigious culture speaks volumes. We have become a society obsessed with rights, and with no sense of responsibilities. Our descent into the ash heap of history remains intact.

9/1/16 update. I checked and sure enough, this case was thrown out, just as I predicted. On 8/17/15 the Judge threw it out in its entirely.

Wednesday, July 2, 2014

The Supreme Court Decision on Recess Appointments

The media has reported this decision as a loss for Obama, in a 9-0 vote. However, when one looks at the actual decision, it is apparent that it was a split decision, 5-4, with the liberals prevailing. At issue is a poorly-written and ambiguous provision of the constitution which gives the president the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The majority opinion, endorsed by the court's four liberals plus the middle-of-the-road Justice Kennedy, held that the appointments at issue were illegal because they did not fall within the definition of "recess", since the Senate met for a pro forma session every three days to ostensibly stay in business, and thus thwart the president's power to make recess appointments. This seems wrong on the face of it, since it is exalting "form over substance", something we lawyers are taught not to do. The Senate was, as a practical matter, not in session during the time of the appointments, even though it claimed to be.

The real issue here is the interpretation of the word "happen". The dispute is whether the vacancy has to arise during the recess, or whether the president can fill a vacancy which arose before the recess, but continued during the recess. The four dissenters (actually concurring justices), felt that the vacancy has to arise during the recess. The majority pointed out, correctly, that this holding would contradict two centuries of actual practice, and would thus be an extreme overreaching of judicial power.

Monday, June 30, 2014

The Hobby Lobby Decision

The U.S. Supreme court issued its long-awaited decision today in the Hobby Lobby case, involving the right of a for-profit corporation to opt out of part of the mandates under Obamacare on religious grounds. This was yet another 5-4 decision, with the conservatives on one side and the liberals on the other, with Justice Kennedy siding with the conservatives.

It is the sort of decision which leads one to realize that the Supreme Court is more of a political institution than it is a legal institution. Of course, it has always been a combination of both, but in recent years it has seemed to embrace political considerations to an unprecedented extent.

The very concept that a for-profit corporation can have religious views is suspect on the face of it. People have religious views, but corporations? I think not.

On the facts, it might appear to be a narrow holding, since it involves only four out of twenty means of birth control which Hobby Lobby is now allowed to deny to its employees. But just think of the principle involved. If in fact an employer's religious views can be used to deny health care services to its employees, where does this stop? What if my employer is a Christian Scientist or a Scientologist, can that employer then deny me access to all medical services, on the ground that the employer does not believe in this approach to healing?

And what of the rights of employees. The decision focuses on employer's rights, but totally ignores the rights of employees to their religious beliefs.

The dissent is correct when it calls this decision one of "startling breadth". One shudders to think to what lengths the right wing in this country will now go in its ongoing attempts to deny universal health care to this country's citizens.

Monday, June 9, 2014

Those Arrogant Morning TV Hosts

I used to enjoy watching Chris Cuomo on CNN's morning show. But when he interviewed Dennis Rodman, he was so verbally abusive and disrespectful to his interviewee that I lost all respect for Cuomo, and I have not been able to watch him since.

A sad offshoot of this is that when I went to the CNN website to register my disgust with Cuomo's pathetic performance (and with the praise everyone else at CNN was mistakenly giving him for his performance), I was astounded to find that 99% of the comments were anti-Rodman, not anti-Cuomo. In fact, most distressing of all, many anti-Rodman comments were downright racist, when race was not an issue at all.

Rodman had gone to North Korea out of friendship with the North Korean leader. This should be considered a good thing, not a thing to condemn him for, as Cuomo did. Yet, Cuomo was relentless in his castigation of Rodman, and he therefore belongs in the Hall of Shame.

Then we have MSNBC's Joe Scarborough. Joe's rants have become increasingly obnoxious in recent months, but there are two specific examples of his arrogance and presumptuousness which pertain to the topic of this post.

After Hoboken mayor Dawn Zimmer told about her encounter with Chris Christie's office, pressuring her to approve a particular development project, Scarborough trashed her, saying that if someone tried this with him he would tell them that "you have 30 seconds to take that back, or I'm calling the United States Attorney. This is presumptuous and arrogant on so many levels one hardly knows where to start. First, none of us knows exactly what we would do in a given situation. It is sheer bluster for Scarborough to pretend otherwise. Second, why would anybody carry around the number of the U.S. Attorney with them? Third, how do you expect a lowly mayor to pick a political fight with a very popular sitting governor? And finally, why does Scarborough assume there is a criminal violation here? CNN's legal expert, Jeffrey Toobin, has pointed out that there is no criminal violation at all here. Rather, it is politics as usual. It is a political issue, not a legal issue.

More recently Scarborough did it again, saying that when Bowe Bergdahl called his father saying he was having doubts about the mission in Afghanistan, the father should have called the unit commander and insisted his son be put into a hospital for evaluation. Again, ridiculously presumptuous. Joe says that's what he would have done had his own son called him with that sort of message. The fact is, the unit commander was already aware of the problems due to Bowe's having walked away on prior occasions, and obviously he didn't feel it merited hospitalization.

This kind of arrogance and presumptuousness I can live without. Joe and Chris, bye-bye.

"Whart's Wrong with Sports," by Howard Cosell

In a postscript, Cosell writes that three days after turning in this manuscript in November of 1990, his beloved wife Emmy died suddenly of a heart attack. It is well-known that after that Cosell deteriorated rapidly, becoming a virtual recluse in his last years. This book, then, is the final account of his views on the sports world.

The book is as honest and hard-hitting as his other three books. Big-time college sports comes in for a lot of criticism. I am reminded of a recent quote, when the Ohio State University president was asked if he planned to fire football coach Jim Tressel. The president's response" "I just hope Jim Tressel doesn't fire me!" This, as much as anything, illustrates the "tail wagging the dog" situation which exists in big-time college sports. Cosell is right on the money on this issue.

As usual, he derides the so-called "jockocracy" in sports broadcasting. I was surprised and dismayed to see Tim McCarver come in for heavy criticism. I see Tim as an outstanding baseball broadcaster, one who always makes the game more interesting and points out intricacies which the average fan would miss. However, Cosell says that "Tim McCarver is unbearable. He's got that whiny voice. He talks incessantly about totally irrelevant things." 

One wonders if Cosell ever bothered to actually listen to a McCarver broadcast. Also, it is apparent from his prior books that Cosell doesn't really like baseball, hence his inability to appreciate a great baseball announcer. It is said that "baseball is only dull to dull minds", and when it comes to baseball, Cosell's mind was as dull as can be.

Cosell deals with drugs, sexual misconduct, gambling, and other negative aspects of modern-day sports. These are all flimsy straw men, representing actions which no reasonable person would condone.

Cosell does offer pertinent comments about the NFL, an organization which he grew to detest in his later years. He documents how the NFL has lost anti-trust cases every time it has gone to trial, beginning in the 1950's with the Bill Radovich case. Later cases lost by the NFL include suits by Joe Kapp (1974), Cullen Bryant (1975), John Mackey, Ron Alexander, and James McCoy Smith. Th fact is that the NFL has been in gross violation of anti-trust laws for decades, and nobody but Cosell has had the courage to speak out against this. For this he deserves great credit.

It is certainly well-known that in his later years Cosell soured on both of his favorite sports, boxing and football. Yet, I was surprised to see him say that the only sport he misses is horse racing. He states that "racing is an honest sport", and that the greatest athlete in his time was Secretariat. 

One wonders what Cosell's comments about horse racing would be today, following the harsh remarks made by California Chrome's owner after his horse's defeat in the Belmont. The owner called the other owners "cowards" and "cheaters" and, based on my following of the Triple Crown races for many years, I would have to say that the failure of any horse to win the Triple Crown since 1978, after twelve horses have gone into the Belmont with a chance, shows pretty clearly that the deck is stacked against any Triple Crown winner ever again appearing. For horses to run three grueling races in a five-week span can fairly be called animal abuse, in my humble opinion. And Chrome's owner is correct in saying that it is unfair for horses to sit out other races and then sabotage a potential Triple Crown winner in the last race.

There is not much really new in this book, other than comments on recent (pre-1991) events such as the Pete Rose banishment from baseball, and the Dave Winfield/George Steinbrenner fiasco. And on these issues Cosell has an obvious bias, one he really does not attempt to disguise, because of his friendships with Bart Giamatti and George Steinbrenner. Because most of this book is a rehash of his other books, I can only give it three stars out of five. However, if the reader doesn't know much about Cosell and wants to read one book to learn what he was all about, this book would not be a bad choice.

4/6/17 update. I recently reread this book and have some fresh thoughts. It is interesting how often Cosell comments on Donald Trump's involvement in sports. Cosell says that it was Trump who was mainly responsible for the USFL "losing" its antitrust case to the NFL ("losing" in the sense that the damages were set at only one dollar). He says it was obvious Trump was angling for an NFL franchise, and his involvement in the USFL was only a means to that end. However, the NFL was never going to let him in, and MLB was especially never going to let him in, due to his heavy involvement with gambling.

Trump's involvement with the sleazier side of boxing is also documented. All in all, Trump comes across as a really bad actor, and it is remarkable that the US has elected him its president, when the major sports leagues all had the good sense to keep him out!

To the extent that this book is an improvement on his other books, it is because Cosell, the ex-lawyer, comments intelligently on legal issues like the NFL's monopoly, and Pete Rose's involvement with gambling.  Indeed, Cosell's testimony is said to have been the high point of the USFL's ant-trust trial against the NFL. 

Tuesday, June 3, 2014

"Endless Summers: The Fall and Rise of the Cleveland Indians," by Jack Torry

As someone who followed the Cleveland Indians growing up in the 1950's, I found this book fascinating. The sportswriters of that era were uniform in their condemnation of GM Hank Greenberg, and now I understand why. Greenberg did not like the press, refused to socialize with them, and as a result the press disliked him as well.

Torry documents that the actual situation is that Greenberg was a great GM, someone who built up the farm system and scouting department, and therefore had the Indians well-positioned for future success. Tragically, he was fired in 1957, and what followed was a 30-year period of poor teams and poor attendance, coupled with never-ending talk of moving the franchise to greener pastures.

As attendance fell, the owners continued to cut back on player development, creating a vicious cycle in which success was impossible. Simply put, the owners couldn't or wouldn't pony up the funds to cover the losses during those years, so they engaged in a series of self-defeating cost-cutting measures.

Things didn't turn around for the Indians until Dick Jacobs bought the team in 1986. Jacobs planned for the future, brought in able people to run the front office, and by 1994 the Indians had a high-quality team playing in a wonderful new stadium. Jacobs actually planned for losses in the first few years, understanding that those losses were a necessary step toward getting the team back on a solid footing.

The lesson of this book is, don't sacrifice the long-term health of your organization for short-term considerations. As voters we should take notice of this syndrome as well; i.e., don't vote for candidates who are willing to sacrifice the long-term health of the country for short-term political gain in the next election.

The Mississippi Senate Race

Clips this morning from both candidates in the Republican Senate primary in Mississippi showed the state of the campaign as the voting commenced today. The challenger seemed fresh and sincere, talking without notes, while the incumbent, Thad Cochran, had to read from notes written by an aide, and looked old and decrepit.

The main issue, if the lamestream media is to be believed, is the use of a video by some supporters of the challenger. The video showed Cochran's wife in a nursing home. The challenger has disavowed any connection between his campaign and those who publicized the video.

This raises a fundamental question. Why is true information considered so toxic? We have politicians who regularly lie to us, not to mention the politicians who engage in dirty tricks (think of Nixon using the CIA, FBI, and IRS to persecute his perceived political "enemies").

I can't help but think of the 1988 presidential campaign, when Michael Dukakis was forced to fire his campaign manager for disseminating true information. The true information was a tape of British Labour leader Neil Kinnock, giving the same speech that Joe Biden had plagiarized from him in a recent campaign speech. It was entirely true information, so what was the problem? The campaign manager was forced to resign, and Dukakis's campaign went into the toilet, never to recover.

What, then, is the big problem of releasing true information? The Mississippi race is said to be dead-even, but my hope is that Cochran's actions in trying to deflect from the real issues and make the tape of his wife an issue will backfire and we will get fresh blood in the Senate. God knows we need it.

Friday, May 30, 2014

Letter to Mennonite Weekly Review

I wholeheartedly agree with the letter from Karl Bartsch in the May 26th issue. This whole idea of "welcoming but not affirming" strikes me as rhetorical nonsense.

In the same issue, I note an article on Dale Schrag's commencement speech at Bethel College. I have often heard Dale say that what Mennonites believe is that "Jesus meant what he said, and he was talking to us."

Jesus' whole ministry was about inclusion, not exclusion. My hope and prayer is that our conference will get back on track with this central message.

Thursday, May 29, 2014

David McCullough's "1776"

McCullough does his usual fine job in describing the activities of the Continental Army during the year of 1776. It was a very difficult year, filled with all sorts of problems for the army.

We think of 1776 as being a year of great achievement for the Continental congress, because of the Declaration of Independence, but in reality the congress failed miserably in providing General Washington with the troops and supplies he needed to wage the war. The British always had much more manpower, and were better equipped. At times some of the US soldiers had to make do without shoes, even engage in long marches without shoes.

Pay for the US troops was often lacking, and desertions happened on an almost daily basis. Disease was also rampant, and Washington usually could not even calculate how many soldiers he had under his command, so fluid was the day-to-day situation with soldiers dropping out due to desertions or disease.

We like to think of "Washington crossing the Delaware" when we think of the progress of the war in 1776. In reality, the war went very badly that year. The British were forced out of Boston, but they took up residence on Long Island, and then took over the entire city of New York when Washington blundered by not defending a particular entranceway into the city.

By giving us a day-by-day account of the struggles of the army, McCullough paints a good picture of what warfare was like in that era. Communication was always by letter, carried by messengers. The vagaries of the weather determined the outcome of  many battles.

My personal preference would have been a book which covers the entire Revolutionary War. I would also have preferred a more accurate account of the attitudes toward the war in the British Isles. McCullough says that public opinion in Britain was split almost equally. However, George Trevalyan's great history of what the British called "The American War" documents that the war was quite unpopular in Britain, with at most one-third of the people in Britain supporting it. Parliament was kept in line only by bribes from King George, and by the use of "rotten boroughs". Edmund Burke's passionate speeches against the war are considered some of the best oratory ever seen in the British parliament, and he had many supporters.

It is clear from "1776" that the colonies held together against Britain only because of the perseverance and leadership of George Washington. McCullough states that Washington "was not a brilliant strategist or tactician, not a gifted orator, not an intellectual. At several crucial moments he had shown marked indecisiveness. He had made serious errors in judgment." But despite these shortcomings, Washington persevered and by  his example inspired his men to believe in the cause of freedom they were fighting for.

The Supreme Court in 2013

My review of Supreme court cases decided in 2013 reveals that the liberal/conservative split is still alive and well. For purposes of this review I break down the justices as follows: the three liberals, which are the three women, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg; the three conservatives, Antonin Scalia, Clarence Thomas, and Samuel Alito; and the three in the middle, Stephen Breyer, who tends to vote with the liberals, John Roberts, who tends to vote with the conservatives, and Anthony Kennedy, who is right in the middle, and so is often the swing vote.

I looked in depth at ten cases from 2013. Let's start with the five in which the liberal/conservative split was exactly as stated above, with Kennedy providing the deciding vote. In Clapper v. Amnesty International, Kennedy sided with the conservatives in denying standing to a group of professionals who were challenging the new FISA law allowing government surveillance of communications between U.S. citizens and people in other countries, the problem being that the plaintiffs had no direct evidence that any of their communications had been intercepted. The four liberals dissented, stating that there was a "very high likelihood" that some of the plaintiffs' communications would be intercepted under the FISA law. The dissenters went to point out that "certainty is not, and never has been, the touchstone of standing".

Then we saw Kennedy siding with the liberals in Peough v. United States, a case challenging the new and tougher sentencing guidelines as an ex post facto law. The dissent argued that the guidelines were only advisory and not mandatory, and, since the sentence given was within the trial court's discretion under either set of guidelines, it should not be disturbed on appeal.

Kennedy sided with the conservatives in Salinas v. Texas, a case in which the prosecutor was allowed to comment to the jury on the defendant's silence when asked whether his shotgun "would match the shells recovered at the scene of the murder". After answering questions up to that point, he suddenly became very nervous and clammed up. The conservative majority rejected defendant's fifth amendment claim because he did not invoke the privilege against self-incrimination. Thomas and Scalia would go even further, saying his silence could be used against him even if he had invoked the privilege, because "the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony".

Kennedy aligned with the liberals in US v. Windsor, a case challenging the Defense of Marriage Act. Here the four conservatives wanted to deny standing, since the government had declined to defend the DOMA law before the high court.

Kennedy was again with the conservatives in Shelby County v. Holder, a case challenging the Voting Rights Act of 1965. Here the conservatives essentially substituted their judgment for that of Congress, which had just reauthorized the Act for another 25 years in 2006, following extensive hearings which had demonstrated that the need for it still existed. Yet, these so-called "conservatives" found the Act unconstitutional.

In three 4th amendment search and seizure cases, 2013 saw the interesting alignment of Scalia siding with the three most liberal members of the court. In Missouri v. McNeely, the court considered the question of whether a warrantless blood test of an individual arrested for DUI was OK as a matter of course. The court held it was not, saying that the normal test of exigent circumstances had to be applied before it would pass constitutional muster. Scalia sided with the three liberals in the main opinion, while Kennedy, Breyer, Roberts and Alito concurred in the result, but not in the court's reasoning used to reach that result. Thomas stamped himself as clearly the court's most conservative member by being the lone dissenter; he felt that exigent circumstances existed in every DUI case, due to the lessening of blood alcohol levels in the body over time.

In Maryland v. King, the court faced the issue of whether it was proper for a state to take a DNA sample from everyone arrested for a serious crime. The majority felt it was OK, saying it was part of the identification process, just like fingerprinting and photographing. Scalia wrote a  blistering dissent, and was joined by the three liberals in his dissent.

Scalia's dissent is absolutely fascinating. He does not follow the normal custom of saying he is "respectfully" dissenting. Rather, he makes it clear that he has no respect at all for the majority opinion, saying "it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error." He ends his opinion by saying that 'I therefore dissent, and hope that today's incursion upon the fourth Amendment, like an earlier one, will some day be repudiated."

Scalia undertakes an analysis of the Maryland law in question, and absolutely destroys the majority's position that the purpose of the DNA sample is for identification purposes. Rather, Scalia shows that the purpose is to conduct what he calls a "suspicionless search". Scalia asserts, correctly I think, that "No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crimesolving." So thoroughly does Scalia eviscerate the majority position, that one is left with the thought that if a law student were to submit the majority opinion as a paper, he or she would surely flunk.

So, what are we to make of Scalia's alliance with the liberals on these search and seizure cases? To me, it looks like Scalia simply takes the text of the constitution quite seriously. Indeed, he quotes the language of the fourth amendment, and goes on to examine the reasons for the adoption of the amendment. He states that the American colonists despised the British practice of using "general warrants", meaning warrants that did not specify who was to be searched, what places were to be searched, and what was being looked for in the search.

It should be noted in passing that the liberals lost this case only because Justice Breyer defected and voted with the conservatives. Usually when Breyer, or his conservative counterpart, Chief Justice Roberts, defects like this they will write a concurring opinion explaining their rationale. Breyer did not do so in Maryland v. King, so we are left to wonder about why he abandoned his liberal colleagues in this case.

In Florida v. Jardines, we see an even stranger juxtaposition of the justices in a search and seizure case. In this case, the police had an anonymous tip about drugs in a particular house, so they took a drug-sniffing dog onto the porch. After the dog alerted, they obtained a warrant and searched the house. The issue, therefore, was whether the initial intrusion onto the porch was justified.

Here again, Scalia wrote an opinion in which he was joined by the three liberals. Here, though, it was the majority opinion, since Justice Thomas joined in. Why Justice Thomas believed the Fourth Amendment meant something in this case and not the other two is unexplained, since he did not write a concurring opinion. Justice Kagan did write a concurring opinion, joined by her female colleagues, explaining that she felt the better approach was to rest the decision on privacy grounds, rather than on property rights. Breyer again broke with his liberal colleagues, but without explanation, as he simply joined in the dissenting opinion written by Justice Alito.

In Fisher v. University of Texas, the court was confronted with the issue of whether a university can use race as a factor in admitting students. The court ruled that strict scrutiny needed to be applied, and sent it back to the lower court to apply the strict scrutiny standard. Scalia and Thomas concurred in the result, but wrote separate opinions making it clear that for them race could absolutely not be considered,  and a prior Supreme Court ruling to the contrary should be overruled. The only dissenter was Ginsburg, but it should be noted that Kagan did not take part in the case.

In Hollingsworth v. Perry, the court considered the legitimacy of California's ballot initiative amending the state's constitution to ban same-sex marriage. Since the state had chosen not to defend that law, a majority of the court felt that the ballot initiative proponents who had taken up the cause did not have standing. The four dissenters were an odd mix: Kennedy, Thomas, Alito and Sotomayor. This odd mixture makes some sense, though, since each might have had a different reason for wanting the case decided on the merits, instead of on the standing issue.

It seems odd that standing was an important issue in no less than three of the above cases. One would think that such a basic concept would have been well-settled by now. It seems to reflect the reluctance of the court to deal with certain hard issues. But why take up the case at all if you are just going to cop out and say there is no standing to decide it?

"The Tempting of America", by Robert H. Bork

This book was published in 1990, a scant three years after Bork's ignominious defeat in the Senate for his Supreme Court nomination. It is obvious that Bork is using this book as an attempt to present his view of constitutional jurisprudence, and to hopefully rehabilitate his discredited views which led to such an embarrassing defeat.

The problem is that the book is virtually unreadable. I bought the book because I genuinely wanted to try to understand Bork's views. Instead, I found nothing informative or enlightening in it. In thinking back on Bork's hearings before the Senate Judiciary Committee, I realize that this was exactly Bork's problem at that time; he simply has no communication skills, no people skills, and could not communicate his views in an understandable way to anybody. When asked a question, instead of answering forthrightly, Bork would grimace, fidget around, look up at the ceiling, and then offer a lame, (usually) unintelligible defense of his views.

In Part III of the book Bork describes the confirmation process, from his point of view.  In response to the public opinion which was mounted against his nomination, Bork repeatedly says things like "every charge recounted was false" (p. 282), "there is not a word of truth in this litany" (p. 286), that "was as flat a falsehood as could be imagined" (p. 289), and many more similar statements, often referring to the accusations against him as "lies".

The salient point to remember here is that Bork had every chance to explain his views, and refute the alleged "lies", if in fact they were really falsehoods. For example, he explains that "I spent almost seven hours all told with Senator Spector, at the hearings and in his offices, discussing constitutional law..." The fact that Bork was unable to satisfactorily explain his views does  not speak well of his abilities as an advocate, hence as a prospective Supreme Court justice.

The fact is that Bork had every opportunity to defend himself, and had vigorous advocates on the Republican side who were defending him, and yet could still not make his case. At one point it was felt that he was going to withdraw his nomination, but after consultation with his wife and children he decided to stay in. He went to the White House and read a statement saying this, and then left without taking any questions from the media. Why he didn't take the opportunity to make his case to the interested public, he does not say.

How bad Bork's performance was during the confirmation process is measured by his pathetic results. He got 42 votes in the Senate. Four years later, by contrast, a much poorer candidate, arguably more extreme than Bork, certainly much less of a legal scholar, and carrying heavy personal baggage, was confirmed with 52 votes, ten more than Bork got, even though there were three fewer Republicans in the Senate than in 1987. That candidate was Clarence Thomas, who still serves on the court to this day.

This book constitutes Bork's (belated) effort to make his case, but it is every bit as pathetic as his efforts during the nomination process. It is little more than an exercise in self-pity.

Wednesday, May 28, 2014

A Perspective on the VA "Scandal"

I never thought I would use the words "Bob Dole" and "statesman" in the same sentence, but Bob Dole recently gave an interview in which he asserted multiple times that "The United States takes better care of its veterans than any other country in the world." This illustrates the wisdom that elder statesman have; this wisdom is based on two things: first, they have a vast amount of experience and so have a better perspective on things than the rest of us; and second, they are out of politics and so can feel free to speak their mind, unemcumbered by the needs and demands of partisan politics.

This whole "issue" of the Va waiting  lists is bogus on so many levels that one hardly knows where to start. First of all, no veteran is being denied care. Any veteran is free to go to any private health care provider, just as the rest of us do.

A recent caller to C-SPAN's "Washington Journal" made the point that a veteran is able to go a private hospital and still have the VA pay for it. He said that every veteran is given a pamphlet when he goes into the VA, explaining the procedure for this. The caller himself has had many surgeries, and never any problem with getting the VA to pay for them. Indeed, every caller to C-SPAN that I have heard has said that he's had excellent care at the VA, and has no complaints.

Certainly no reasonable person would deny that a veteran who has seen combat, and has health issues resulting from that combat, should be entitled to free, top-notch medical care. But the veterans whose "service" consists of sitting behind a desk for two years in this county is in a much different category. There need to be more sensible standards about who is entitled to free care.

A caller to "Washington Journal" provided some useful perspective. He is a plumbing contractor who does a lot of work in hospitals, both private and VA. he said that when a private hospital does something wrong, nobody hears anything about it. However, when a VA hospital does something wrong, it is splashed all over the front page the next day.

This is in line with what I discovered when working years ago for a government-funded anti-poverty agency. When I took exception to a critical article in the local newspaper and wrote to the reporter about it, I received a response saying that anything an agency does with taxpayer dollars is fair game.

Another problem is the need for any government agency to give "due process" to its employees. What this means is that, unlike in the private sector, it is very hard to get rid of an unsatisfactory employee. This is because of the Constitutional requirement that the government cannot deny anybody "life, liberty or property without due process of law". Since a job is considered to be a form of property right, we have the due process problem. Again, I ran into this working for a government agency, when an incompetent personnel director was fired, then went to court and got his job back, with back pay.

The best system is to get rid of all the layer upon layer of bureaucracy and red tape in the health care delivery system, and go to a single-payer system in which we all have the right to health care. When Dwight Eisenhower was contemplating running for president in 1951, a journalist asked him if he "believed in socialized medicine". Ike's response: "Well, I don't like that term, but I believe everyone in this country should be entitled to free health care." Ike's wisdom holds true today, even more so than in 1951.

Friday, May 16, 2014

"Presidential Leadership", edited by James Taranto and Leonard Leo

This book undertakes to rate the U.S. presidents, using a survey methodology thought to be superior to the usual technique, as used by C-SPAN in its surveys. C-SPAN surveys historians, giving each a list of ten qualities, and asks the responders to rate each president on each of these ten categories on a scale of one to ten. The figures are then added up to arrive at the final result for each president.

The C-SPAN methodology suffers from the fact that each of the ten categories are presumed to be equal in importance. This is a huge flaw. The editors of this book improve on this methodology by asking the responders simply to rate each president on a scale of one to five. Additionally, these editors, who represent two conservative organizations, the Wall Street Journal and the Federalist Society, seek to broaden the base of responders by choosing not only historians, but also political scientists and law professors. Also, an attempt is made to survey an equal number of respondents from the left and the right, correcting what the editors perceive as a liberal bias among historians generally.

The survey results are still hopelessly wrongheaded. But in addition to this basic problem, the essays on the presidents are each written by a different writer, some of whom agree with the survey results and some of whom do not. Consequently, there is no coherence to the book, no consistent standards used to evaluate the presidents.

There are so many internal inconsistencies that one hardly knows where to start. The essay on Andrew Johnson by University of Texas professor Jeffrey K. Tulis points out the folly of judging presidential success by how effective the president was in achieving his stated goals. Tulis states that if this standard is used, then Johnson was a "remarkably successful president". But Tulis believes that Johnson was in fact "an awful president", and evaluating Johnson's presidency "reminds us how cramped and inadequate is a notion of success confined to power and shorn from the ends for which power is deployed". In other words, the ends have to be legitimate and worthy.

How in the world, then, can John Adams be ranked 13th, and Lyndon Johnson be ranked 17th? Adams saddled the country with the odious Alien and Sedition Laws, which made criticizing the president a jailable offense. Indeed, when Adams left office, there were dozens of journalists languishing in prison for criticizing the government. What could be more unAmerican than that?

Similarly, the rank of LBJ in the top half is ludicrous. Every independent factfinder Jonson ever sent to Vietnam always came back with the same pessimistic report: it was an unwinnable war, and we had no business being involved in it. Yet, he continued on with his war, do only to his out-sized ego and his basic insecurity. LBJ should be ranked near the bottom, yet the ratings and the essay on his presidency support the top-half rating.

A basic principle of evaluating the presidents is that the evaluation should be based on their presidencies, and not their accomplishments outside their presidencies. Only the failure of the editors to observe this basic principle can explain how James Madison, William Howard Taft, and John Adams can all be ranked in the top half. All were mediocre presidents, though all had accomplishments during other parts of their lives which mus have entered into the thinking of those who offered opinions for this book.

Then we have the problem of blaming presidents for economic collapses that were caused by their predecessors. Thus, we have Martin van Buren (23rd) and Herbert Hoover (29th), both of whom were inexplicably rated lower than their predecessors: Andrew Jackson at 6th, and Calvin Coolidge at 25th.

The laissez-faire philosophy of the conservative/libertarian editors is shown in the essay on Bill Clinton, which contains this line: "the nation thrived mightily, as always when the White House does nothing". Yet, this principle is violated repeatedly when strong, activist presidents are routinely placed higher than they deserve. Andrew Jackson is the worst example of this. To place him 6th is a bad  joke. Jackson destroyed the monetary system with his repeated vetoes of the bills presented to him by Congress, leading ultimately to a horrible depression which his successor had to deal with. When Andrew Johnson thwarted the will of Congress, the book claims that this justifies his presidency being rated a "failure"; but when Andrew Jackson does it, for some reason his administration is nevertheless labeled as "near great".

The essay on Jackson mentions only in passing Jackson's forced removal of Native Americans west to present-day Oklahoma. His "Trail of Tears" saw a considerably higher percentage of deaths than the infamous Bataan Death March during World War Two. The essay does not even mention at all Jackson's infamous response to the Supreme Court decision in Worcester v. Georgia, when he supposedly said "John Marshall has made his decision; now let him enforce it!" Whether Jackson actually said these exact words or not is irrelevant, as it clearly expressed his views that the law meant nothing to him when it came to the forced removal of Native Americans to land unwanted by White settlers. For editors supposedly dedicated to limited, constitutional government, it is odd indeed that Jackson's efforts to deliberately violate a decision of the Supreme Court pass without a mention in this book.

And finally, we have the problem that presidents who returned the country to normalcy following the turbulent and error-prone tenure of their predecessors are routinely under-rated. In this category we have James Monroe, Rutherford B. Hayes, Warren Harding, and Gerald Ford.

To understand how important the Monroe years of tranquility were, one must understand how horribly disruptive were the years of his predecessor, Madison. Madison took the country into a completely useless war, the War of 1812, a war which accomplished nothing, ended in a stalemate, and triggered a serious secession movement in the New England states. The people surveyed for this book seem to think that the "Era of Good Feelings" under Monroe happened by accident. To the contrary, Monroe made every effort to personally travel to every part of the country, and to appoint cabinet members from every part of the county. His foreign policy pronouncement, the Monroe Doctrine, represented a giant step forward in the U.S. taking a proactive approach to foreign affairs, in contrast to the reactive approach of Adams and Madison, and the doctrine still resonates to this day. To rank Monroe only 16th is to say that no president  can be ranked higher than that unless he has had to face a huge crisis. I reject this narrow-minded thinking.

Similarly, Hayes represents a period of healing with the ending of reconstruction. Hayes also represents one of the most principled men to ever hold the highest office; he stated early on that he would only serve one term, because he didn't think a president should govern with an eye towards his re-election, and he kept his word on this.

Similarly, Harding represents a needed healing time after Wilson's ineffective presidency, and Ford represents a  healing time after Nixon's nightmare of a presidency.  These two, along with Monroe and Hayes, are all grossly underrated.

The book I would like to see is one that presents the criteria to be used right upfront, and then consistently follows through on rating presidents based on those state criteria. This book, by contrast, is all over the place.

Friday, April 25, 2014

Should college athletes be paid?

This is the way the question is usually posed, but it is a particularly unhelpful way to pose the question. College athletes are already paid; the question is, should they be paid more?

The idea that a college can feed an athlete on scholarship a bagel, and that is OK because the NCAA considers it a "snack", but when you put cream cheese on the bagel, then it is not OK because that is considered a "meal", is  ludicrous on the face of it. Many, many more examples can be given of the ridiculousness of NCAA regulations, but this makes the point quite nicely.

NCAA head Mark Emmert has gone on TV recently defending the ridiculous NCAA rules, and he is surely the most inept person I have ever seen in such a high leadership position. The NCAA and its member institutions have promulgated numerous frivolous arguments to dissuade its athletes and the authorities from determining that the athletes are, in fact, "employees", which they clearly are. One of the most outrageous allegations/threats is that if these employees choose to unionize, their scholarships will henceforth be treated as income, and they will be taxed on it. Whether the scholarship money is income or not will  be determined by IRS law and regulations, and has absolutely nothing to do with whether these employees decide to unionize.

Coaches have talked about how their players have to purchase their own disability insurance, so that if they suffer a career-ending injury, they will be compensated. Coaches have talked about how their star players cannot take their girlfriends out for a movie or a pizza at night. Coaches have talked about how the parents of their players cannot afford to come watch their sons play; or, in the event of a family emergency, the players cannot afford to fly home.

All of these are problems that would be addressed if the players were allowed to unionize and have a say in their future. I support this effort, and I hope it succeeds. The NCAA has a ten billion dollar contract to televise March Madness, and a ten billion dollar contract to televise the football playoffs. To deny this is big business is to perpetrate a fraud on all fans and players.

Tuesday, April 8, 2014

Do women still get paid "far less than their male counterparts"?

This was a claim made by Mika Brzezinski recently on "Morning Joe", MSNBC's morning program of news commentary. The basis for the claim is that women, on average, are paid 77% as much as men are, on the average. Assuming this is true, it in no way support's Mika's ridiculous claim.

First of all, equal pay for equal work has been the law for a long time now, and seems to be widely accepted. Any employer who does what Mika alleges would be in severe hot water legally.

Mika is a competent journalist, but she has her head way up her you-know-what on this issue. Studies have shown that, even among couples who are committed to sharing housework equally, once the first child is born, the equality is out the window, as the female takes vastly more responsibility for the child than the male. Obviously, this means the female spends less of her time and energy on her career, compared to men.

Another stat which is pertinent is one I heard many years ago, and never refuted, which is that never-married men and never-married women get paid about equally. This supports the notion that the problem is not any workplace discrimination, but rather, different choices that men and women make as to their priorities vis a vis family vs. career.

Choices of careers between men and women have a large role here also. Women tend to pick lower-paying jobs for their careers. Relative to men, there are very few women computer engineers, for example. How many women brain surgeons and rocket scientists are there?

By using the word "counterparts", Mika implies that women are paid less for the same work as men. Nothing could be further removed from the truth.

Tuesday, April 1, 2014

Why I don't believe in insurance

Like people who play the lottery, people who buy insurance are basically innumerate (i.e., mathematically illiterate). In both cases, what you are doing is paying a middle man who skims a portion of the proceeds off the top, and then distributes the remainder to the participants. In the case of the lottery, the amount skimmed off is 50% or more; with insurance companies it is somewhat less but the principle is the same.

A further problem with insurance is that you are placing a bet that something bad is going to happen to you. In the case of life insurance, you are betting that you're going to die; if you live, you've lost the best. With disability insurance, you are betting you are going to become disabled; if you don't, you lose the bet. With health insurance, you are betting you are going to get sick or injured; if you don't, you lose.

What this amounts to is that you are subsidizing those folks who engage in risky behavior, whether it be smoking, not wearing your seatbelts, or whatever. If you have the good sense to make a reasonable effort to take care of yourself, you are making a really losing bet, over and beyond what the normal person makes when he/she buys insurance.

The obsession with insurance which has developed since World War 2 represents the decline in community during this era. People who are part of a community do not need insurance, because they know that the community will step in to take up the slack. The essence of community is a group of people who are committed to the idea of bearing each other's burdens; hence, no need for insurance.

A recent book about the experience of the Hutterites in World War One, called "Pacifists in Chains: The Persecution of Hutterites in the Great War", describes an odd consequence of the sense of community existing among the Hutterites. The book describes the experiences of four Hutterite men who were conscripted into the military during WW1. As husbands and fathers, they could have easily avoided conscription by simply checking the box that they were the "sole support" of their families. But, with scrupulous honesty, they failed to check this box, because they knew that the community would take care of their families in their absence.

A particularly outrageous example of how insurance companies spend the money they skim off the top from our premiums is seen in the exorbitant amounts that car insurance companies are paying for advertising in recent years. The TV airwaves are saturated with this advertising, which is especially inexplicable in light of the fact that the requirements for a basic car insurance policy are mandated by state law in every state. Every day we see these ads: Progressive (Flo and her "name your price tool"), Geico ("fifteen minutes could save you fifteen percent or more on car insurance"), State Farm ("like a good neighbor, State Farm is there"), Allstate (you're in good hands with Allstate),  Farmer's ("we are Farmer's"), Safeco ("some people want more out of life"), The General ("Go to The General and save some time"), (esurance (poking fun at Geico's "fifteen minutes" jingle by saying it only takes seven and a half minutes with esurance), and, most bizarrely, USAA ("Once it's earned, USAA auto insurance is often handed down from generation to generation").

The purpose of this post is not political, but I can't help observing that Obamacare is a pathetic attempt at reform, relying as it does on the private insurance system. True reform will not come in the U.S. until Congress decides to join the rest of the developed world in providing health care to all.

 The absurd situations which arise when the private insurance system and private employers are involved is represented by the Hobby Lobby case, which was recently argued before the U.S. Supreme Court. Hobby Lobby argued that its religious liberties were being violated by being forced to cover contraception in the health insurance plans provided to its employees. This position is laughable on a number of grounds.

But consider the larger question, presented by the thrust of this post. Why should health insurance plans cover contraception? Insurance, if it has any legitimate role at all, should be used to protect us against catastrophic events. Just as we don't expect our car insurance to pay for routine oil changes, neither should we expect our health insurance to pay for routine body maintenance. When I learned that the contraceptive coverage in question was available for as low as $9 a month, this made the Obama Administration's position seem awfully weak on the coverage issue.