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Posts published in February 2016

Political destruction

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I was sitting in a barbershop the other day as the barber worked on a guy - both facing away from me while they watched the flatulent Donald on Faux Neus.

During one of his repeated oft-repeated lies, I said something like “The guy just can’t stick with the truth about anything.”

The fella in the chair, still facing the other way, asked “What’s the matter? You don’t like Trump?’‘

“I believe he’s the most serious threat our modern political system has had to deal with, “ I replied. “A very dangerous person.”

The guy got up quickly, turned to face me and half-yelled, “Donald Trump is one of the great heroes of our time. He’s the only one out there who gives a damn about us veterans!”

“Trump is a veteran,” I asked?

“Damned right,” the guy said as he walked the 20 feet between us to get right in my face.

“When and where,” I asked?

The guy stopped, fumed, said nothing, then got back in the chair. Later, as he was leaving he said to all, “Trump’s a vet. And I’m a vet. And I’m going to knock on every door in this county to get him elected.”

I asked Barber Don to change the channel. He did.

Trump is no veteran. He was kicked out of three high schools so his father sent him to a military academy. That - and multiple deferments during the Viet Nam war - are as close as he ever came to vet-dom.

I use this slice of small town, seaside life, to help illustrate what’s coming which is this: I believe Donald Trump has done irreparable damage to our system of presidential elections. We will never look at the process in the same way again. And we may never elect a president the same way again. Trump - outright lies, false claims, obscenities and all - has infected millions of people like the guy in the barbershop. He’s making a mockery of a centuries old system of selecting a president - a commander-in-chief - and convinced millions of people his lies are truth and truth is anything his “followers” believe it to be. Or, they don’t care.

Complicit in this political destruction, I believe, is the National Republican Party. By standing idly by as 24 mostly unqualified and untalented people put themselves before the country to run for president, the GOP failed to advance and fully support someone - or several someones - who had the necessary skills to become president. Preibus and the other GOP moolah’s stayed out of the fray, vastly underestimated Trump and abrogated any responsibility for assuring the party had viable and qualified candidates.

Democrats have little to crow about, either. The closest Bernie Sanders - with his avowed but universally misunderstood Socialist label - is likely to get to the White House is to join someone’s protest picket line on Constitution Avenue in 2017. Secretary Clinton - qualified without doubt - comes to her candidacy carrying so much baggage she needs a dozen personal porters. Baggage Trump - or any other eventual GOP nominee - will use to beat her bloody and undercut her candidacy daily.

There’s even more blame for an intransigent Congress led by people who long ago lost sight of their own small roles in our Republic or how to conduct themselves and the affairs of this nation to benefit the people who put them there. They, too, helped create a Trump.

The far right has no corner on uninformed - dare we say ignorant - voters by the millions. The liberal contingent to left of the Democrat center has been producing it’s own falsity and peddling some ill-founded claims.

The plain truth is a huge block of Americans - maybe more than half - knows little more about the candidates of either party than they see on TV or hear in conversation with equally uninformed friends. Evidence of lack of basic knowledge of our government is everywhere - from high school campuses to retirement homes. Breeding ground for “Trumps.”

Try it yourself. Ask people around you: when (to the nearest 10 yeas) was “In God We Trust” added to our money - when (to the nearest 10 years) were the words “under God” added to our Pledge of Allegiance - how many justices on the U.S. Supreme Court - what’s the capitol city of Alabama, New Hampshire, Florida, Georgia, New Mexico, Tennessee - what did the slogan “54-40 or fight” mean - find Afghanistan on a world map - how many voting members are there in the U.S. Congress?

I don’t know if P.T. Barnum really said “never underestimate the ignorance of the public” as the story goes. But he made a damned big impact doing just that! So is Trump.

Voters - especially this year - are awash in political lies, deliberate misinformation, half-truths and false claims. Both national political parties have contributed greatly by not producing fully vetted - and qualified - candidates. So have several generations of public and higher education by not making extensive knowledge of citizenship required learning from first grade through grad schools. Across the board, citizens of this country know a lot less of their government than those of other nations. Proof of that is not hard to find.

But it’s Trump who creates the most fear for our national future at the moment. Like a 9-point earthquake under a glass factory, he’s shaking and breaking the foundation of rules, traditions, protocols and requirements for an orderly political process to select the head of government for this nation and begin transition to a new administration.
His complicit handmaiden is the national media. The pursuit of ratings points - read advertising dollars - has made whores of CNN, MSNBC and the always unreliable Fox News. Trump’s candidacy is being treated like the “second coming” as networks follow his travels with cameras at the ready and breathless anchors worshiping his over-the-top pronouncements whether they contain a grain of truth or are pure B.S..

National print media has been only slightly less worshipful. Some efforts have been made to separate Trump’s wheat from Trump’s chaff but not nearly enough. Hate radio has daily relayed lie after false claim after mindless personal attack - convincing loyal followers that Trump - and Cruz to a lesser degree - will “make American great again.”

At the moment, though he’s totally unfit and completely unqualified, it’s hard to see how Trump can be denied the Republican nomination. It’s about a lock. Counting delegate noses, it’s nearly impossible to see anyone but Clinton coming out of the Democrat convention. If that’s the ticket in September, bookies in Vegas will likely put their money on Trump. In some spots, they already are.

Donald Trump is a danger to our national security that the founding fathers never saw coming. A former national security chief is already openly describing how the U.S. military might have to disobey and oppose a future President Trump.

He’s heavily damaged a political process. It’s equally possible he could damage an entire nation before it’s over.

First take/First of many

What effect is Donald Trump having on this election year? Check out this ad and get an early sense for what's ahead. Actually, a few months from now this ad from Arizona may be considered a softball.

From George Will this morning: "Trump’s collaborators . . . will find that nothing will redeem the reputations they will ruin by placing their opportunism in the service of his demagogic cynicism and anticonstitutional authoritarianism." . . . - rs

From a podcast

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You can follow what’s going on at the Idaho Legislature in many ways besides the conventional news media and digital streaming. One of them is through the reports released by the Idaho Freedom Foundation.

Another, it turns out, is through podcasts – such as one released last week by state Representative Kelly Packer, a Republican from McCammon, on the subject of the IFF.

The IFF, which is run by Wayne Hoffman, has been a major presence at the Statehouse for some years. It has generated news-type reports on legislative activity, and also made clear its support or opposition to various pieces of legislation, which Hoffman is careful to say does not constitute lobbying. (Not everyone agrees with that.) Its most impactful activity, though, may be its regular scoring of legislators on a “freedom index,” which is derived from support or opposition to various pieces of legislation. The scores informally are used to describe Republicans as relatively conservative or not. Those ranking low may be attacked as RINOS (Republican in Name Only), which can be hazardous in a Republican primary.

(Ironically, all this matters far less to the Democrats, who’d face sharper questions if they scored well.)

This week, in response, legislator Packer said that. “I just had finally had enough. I wanted to push back.”

She said this on her regular podcast, available online to her constituents and others. (The web address for this one is https://soundcloud.com/kelley-packer/week-6-rep-kelley-packer-2016-idaho-legislative-report.) Packer is no RINO, as her overall comments and past work as a Republican county chair make clear. But in her latest podcast (at about th 6:20 mark), she had some sharp words for IFF.

“It’s more concerted this session than it has been in the past,” she said. Packer said she was at one time supportive of the group: “I was looking forward to having someone that would provide an honest conservative view as well.” Now, she said, “They don’t like me,” and the feeling seems to be mutual.

“There are just a lot of ironies and hypocrisies that I see in place” she said. “With a 501(c)3 those people that donate to them get a full tax deduction, but the offset to that is that they’re not supposed to be able to lobby, and yet they do. And in fact in the campaign season for 2014, I believe, they put up billboards smearing good conservatives . . . another hypocrisy is they’re very un-transparent even though they ask everyone else to be transparent.”

Her immediate concerns run inside the statehouse: “I watch people selling their votes in order to get a certain score, and that is worrisome to me. When you put on blinders and you simply follow any organization and you just do what they want you to do, then how can you really be saying you’re representing your district or the people that put you here; how can you say in good conscience you’re doing your due diligence ad understanding the issues well enough to do the right thing every time? You’re not. You’re turning your power and vote over to that organization ...”

For several years, the IFF report card has been an influential medium within the Idaho Legislature. But as Packer’s podcasts show, there’s growing potential for other new media to counter and compete with it, which may come as a relief to a number of legislators and to many of their constituents.

Short line

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Short line railroads in Idaho will soon be blowing their horns over a proposed taxpayer funded subsidy that will amount to more than $2 million in federal tax credits which comes out to $14,090 per railroad employee. AND, that is just for Idaho rail companies.

Short lines are the the railroads that connect to the big mainline trains like Union Pacific and Burlington Northern. The Boise Valley RR between Nampa and Federal Way in Boise is a short line.
Senator Mike Crapo and Sen. Ron Wyden are behind the scheme to make permanent what has become a regular special break for the railroads. They call it “Building Rail Access for Customers and the Economy–BRACE Act.

The GUARDIAN sees the special interest tax break as Organized Fleecing For Tax Refunds Abusing Citizen Kind–OFF TRACK.

Here is how Crapo spins his special interest tax break:

WASHINGTON – Idaho Senator Mike Crapo and Oregon Senator Ron Wyden today introduced the Building Rail Access for Customers and the Economy, or BRACE Act, which would make permanent a critical tax credit used to repair and upgrade short line railroads.

“Small business freight railroads connect Idaho’s farms to markets across the nation and around the globe. For too long, Congress has taken a short term view of these crucial economic corridors. This measure will allow short line railroads to make long-term plans for infrastructure repairs and upgrades,” said Crapo. “Short lines are a crucial economic link to thousands of railroad customers. This legislation will improve the link between our communities and the national freight railroad network.”

The short line railroad track maintenance credit provides short line and regional railroads a 50 percent tax credit for railroad track maintenance expenses, up to $3,500 per mile of track owned or leased by the railroad. The short line railroads ensure that small manufacturers’ products can get to markets in an efficient and cost-effective manner. Last December, Congress passed the Short line Short Line Railroad Rehabilitation and Investment Act of 2015, which expanded and extended the credit through 2016.

Since 2006 Congress has acted periodically to extend the credit, often retroactively and often almost a year after expiration. This uncertainty causes private investment to decline, limits investments in safety and customer service, and provides uncertainty to businesses, farmers, and employers that cannot be globally competitive without freight rail.

Meeting farm to market demands, nine small freight railroads serve the Idaho economy operating 624 miles of privately owned freight track—40% of all railroad track in the state. These railroads directly employ 155 Idahoans and serve as the crucial link to the dozens of rail-dependent businesses that employ thousands more and would not be competitive without rail access. These railroads serve as the crucial link to the dozens of rail-dependent businesses that employ thousands, and would not be competitive without rail access.

Crapo and Wyden’s bill is also cosponsored by Sens. Jerry Moran, R-Kan., Johnny Isakson, R-Ga., Pat Roberts R-KS, Bob Casey, D-Penn., Charles Schumer, D-N.Y., and Richard Blumenthal, D-Conn.

First take/late

I have seen elections in which the dynamic would have played beautifully to John Kasich, or maybe even Ben Carson.

Normal elections tend to reward non-squabblers, the candidates who glide above all, stay free of the fray. Many are the three-way or four-way elections in which two, or three, of the contenders get drawn into an ugly battle, and the other candidate profits by staying clear and looking like the adult in the room.

Last night that would have been Governor John Kasich, who almost throughout the two hours-plus Republican presidential debates managed not to get drawn into a kindergarten-level battle engaged in by frontrunner Donald Trump, and his two increasingly desperate challengers, Marco Rubio and Ted Cruz. Physician Ben Carson, who was quieter than Kasich (and everyone else, as usual), stayed out of the free for all too.

But this is not a normal election year, is it?

And so we watched to see which of the three combatants fought better. On that level, the result was clear: Trump quickly took the upper hand and never relinquished it. It was not good conventional debating, but it worked as psychological warfare. The many who tuned in to see if Trump would be brought down this time saw that he wasn't. Rubio and Cruz fired shot after shot, and only rarely this time at each other, but none seemed to do much damage. (Some were simply not well delivered. At one point early in the debate Rubio ran through four or five op-research talking points, any of which might have been damaging, so quickly that the details were lost and the points quickly forgotten.)

Various polling afterward showed Trump as having "won" the debate.

I wouldn't say he won the debate. He won the fight, the schoolyard brawl (even to the point of holding up his index finger to get teacher to intervene), which seems to be what matters this year.

It'll probably be good for a strong Super Tuesday showing. Likely, it's now too little, too late to stop Trump in his run for the nomination. - rs

Minimum wage emergency?

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“During my tenure, I was adamant that the governor’s office and his closest advisers not blur the lines between state interest and other matters. My concern was seen as disloyalty. I was viewed as an outsider who did not understand the way that they did business. I was told that as long as things were good it did not matter whether things were right.”

So said a Kitzhbazer staffer to Nkenge Harmon Johnson after she objected to a process abuse. (The Oregonian, 11/3/14)

This isn’t just a case of a rogue Democratic Governors office. It’s endemic in the Oregon Democratic Leadership. If they think a policy is good, then abuse of process is irrelevant.

It’s now become John Oliver-esque with the laugh in your face abuse of the Constitutional emergency clause in regards to Oregon’s new minimum wage legislation.

Article IV, Section 28 of the Oregon Constitution provides that Legislation take effect no sooner than 90 days after the close of the Legislative Session, except in cases of “emergency”.

The reason for the delay is because the Oregon Constitution grants to “The People” the ability to challenge any law passed by the Legislature during that 90 days by gathering signatures and referring it to the people. If citizens gather about 60,000 signatures, the law is stayed and placed on the next general election ballot for an up or down vote.

If however, the State faces an impending emergency, then that 90 days can be waived by including an emergency clause. (And apparently 68% of all legislation now carries an emergency clause)

Emergency isn’t defined in the Constitution. So, just as Mitch McConnell can rightly say that there is no requirement in the US Constitution to allow a vote on an Obama appointment to the Supreme Court, Oregon Legislators can append an emergency clause to any legislation without explanation and negate the right of referral. Negating constitutional requirements or rights shouldn’t be taken so lightly perhaps. But I guess it’s politics. And that’s what the Democratic legislators did with the minimum wage bill.

With an emergency clause legislation takes effect immediatly, and if the people are to challenge it, the law will stay in place and the challengers need to go through a longer and more costly process of filing an initiative and petition.

But perhaps there was an emergency in this case?

Without an emergency clause, the minimum wage legislation would have taken effect 90 days after the 2016 legislative session ended, or June 5th, 2016l. If someone challenged the law within this time period by gathering signatures for a referral the minimum wage law would have been stayed until November, 5, 2016 and we’d vote on it.

But the Legislature believed that the wage crisis was an emergency and we had to raise the minimum wage immediately and we couldn’t wait 90 days. No, just kidding.

Because here’s the thing. The law doesn’t raise the Oregon minimum wage until July 1, 2016. That’s a full 115 days after the legislative session ends. So an increase in the minimum wage is such an emergency that we can’t wait 90 days, however we can wait 115 days?

And it’s even more ludicrous. Because the wage increase in July 2016 is only twenty five cents and The larger increases are phased in over 6 years. Some emergency. One that doesn’t start until 115 days after the session, then can be addressed over a 6 year period of time.

For those of us who believe in the spirit of due process, regardless of your position on the minimum wage, it’s beyond frustrating. Because it’s the process of law, and abiding by the spirit (substantive due process) and letter of that process (procedural dues process) that protects our constitutional rights and gives legitimacy to our government. When lawmakers intentionally violate or abuse due process they damage our democracy.

But as far as Oregon Democratic leaders are concerned I guess …as long as things are good it does not matter whether things are right.

First take/Otter-Kasich

Cycle back to around, oh, 2001, and look at where C.L. "Butch" Otter and John Kasich were then - not just physically, but philosophically.

On his election to the U.S. House in 2000, Otter was described by the Almanac of American Politics as "not the social conservative his predecessor Helen Chenoweth was," but beyond that very much in the conservative old: favoring lower taxes, reduced regulation, a pro-business outlook.

At right about that time, Kasich was becoming George W. Bush's budget director, after a stretch as House budget committee chair. He and Otter had some similarities in personality, both exuding a certain sunniness and natural campaigning charm, and also ideological rigor of the same sort. Kasich had batted Bill Clinton with "cut spending first" demands in the 90s, ad became Budget chair "determined to reduce the size and scale of government." He and Otter would have been kindred spirits in D.C. Both were solidly loyalist in the conservative movement of the 90s and beyond.

With that in mind, Otter's endorsement this week of Kasich for president comes as no shock, but it does show how far the Republican Party has come. These days, Kasich is no longer on the front lines of the right; within the party, he's more often considered a "moderate" or worse, the "least conservative" of the Republican presidential field even when that field consisted of 16 or so candidates. And Otter has been challenged from the right, seriously, something that (as he has said) would have been simply inconceivable not so many years before.

On another level, the endorsement may also show something else: Personal loyalty, since at this point Kasich seems to have no practical path to the Republican nomination. - rs

Idaho’s preference

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Soon, courtesy of all Idaho’s taxpayers, Republican voters will march to the polls to state their preference for the nation’s next commander-in-chief.

Whether this exercise has any impact upon the presidential sweepstakes remains to be seen, especially since Idahoans will be voting one week after Super Tuesday, the big enchilada that will see over a third of the delegates being selected.

With Michigan and Mississippi also holding primaries, it’s a safe bet the national media will congregate that night in Detroit, not Boise.

Still, it is fascinating to examine which aspirant is being supported by which major Idaho Republican figure. To date one could say Idaho has covered itself with prominent Idahoans having spread their support across most of the candidates.

The one big exception is the current GOP frontrunner, Donald Trump. He has a posted list of 860 supporters, but who they are and how well organized they are remains to be seen. It is doubtful that endorsements by any one figure will carry real influence. Far more likely is the scenario that the one or two top winners in Super Tuesday will likewise do well in Idaho.

In 2008 and in 2012 Idaho Republicans went with the eventual party nominees, John McCain and Mitt Romney. In 2016, Idaho GOP rules for selecting delegates to the National Convention in July in Cleveland will probably result in more than one candidate picking up Idaho delegates.

If one candidate receives over 50% of the vote he will garner all 32 delegates. If the winner has less than that, to receive delegates, the threshold is more than 20%. This will guarantee that Idaho has a split delegation at least for the first round of balloting in Cleveland.

In late February the Idaho race appears to be shaping up as a contest between Texas Senator Ted Cruz and Mr. Trump with Florida Senator Marco Rubio closing in on the frontrunners.

Rubio has two aces in his hand - U.S. Senator Jim Risch and the “shadow shogun” of Republican politics, Idaho Falls billionaire businessman Frank VanderSloot. Risch and Rubio serve together on the Foreign Relations and Intelligence committees. Both are devout Roman Catholics.

VanderSloot is a member in good standing of the LDS Church. Speculation as to why he would support Rubio over Cruz goes right to the heart of the major difference between Cruz and Rubio regarding the issue of illegal immigrants, who Cruz would ship back, but Rubio would allow to remain if they go to the back of the line of those applying for citizenship.

VanderSloot reportedly employs a goodly number of legal immigrants at his Melaleuca company. A major fund-raiser last time around for Mitt Romney were the National Convention to be brokered one could expect VanderSloot to switch back to Romney.

Approximately one-third of the Idaho electorate belong to the LDS Church. These voters tend to be quite conservative, but some would argue this does not mean they would go for Cruz. After all several million evangelicals stayed home in 2012 rather than vote for Mormon.

This fact alone caused some to arch an eyebrow when First District Congressman Raul Labrador threw his endorsement to Cruz following the collapse of Rand Paul’s campaign. Other Cruz supporters include former party chair Norm Semanko and State Treasurer Ron Crane.

Jeb Bush enjoys the support of former Governor, U.S. Senator and Interior Secretary Dirk Kempthorne, as well as that of former Attorney General and Lt. Governor David Leroy. Phil Reberger, former Kempthorne chief of staff and major domo in his own right in GOP circles is also thought to be a Bush supporter.

Ohio Governor John Kasich has the support of two Idaho state legislators, Merv Hagedorn and Robert Anderst.

Idaho’s other major officeholders - Governor C.L. “Butch” Otter, Senator Mike Crapo, Second District Congressman Mike Simpson and Lt. Governor Brad Little are all remaining studiously neutral.

To this writer’s thinking, the best of the GOP lot, and indeed the best of the whole bunch is the Ohio governor, John Kasich.

As to the Democrats, they caucus on March 22nd. Last time around Hillary Clinton’s team overlooked Idaho and to their chagrin Obama’s team captured a majority of Idaho’s delegates.

This time around Idaho will be a contest that will come down to whether the young voter’s adoration for Senator Sanders translates into attendance at their caucus vs. the Clinton team’s ability to turn out her base.

One word of caution to Senator Sanders - he’d best back off of his plank calling for free higher education to be treated as a birthright. Universities in states like Idaho or California, where there are private religious affiliated schools, would rapidly be driven from the field - the College of Idaho, Northwest Nazarene, BYU-Idaho, and Gonzaga simply could not compete against public schools offering free higher education.

First take/Trump

Where we are post-Nevada GOP is this: Donald Trump has a clear and obvious glide path to the Republican presidential nomination. Stopping him, which still looked plausible as recently as the beginning of this month (with his second-place Iowa results), no longer does.

There is a tendency in the nomination process for voters to move toward candidates who do well: Once a candidate becomes a clear front runner on the basis of voters, a mentality toward joining with the probably winner starts to take over. Historically, this tendency has been visible in both major parties, and likely will recur this year in both.

And most dramatically on the Republican side. The significance of the Nevada result wasn't just Trump's win but the size of it - approaching half of the overall vote in a field of five contestants, three of them well-funded, highly-visible and strongly-supported. As many have said elsewhere, if the front runner were a conventional politician instead of Donald Trump, the contest would more or less be called over already. The infamous and garbagey Drudge Report (which has been in Trump's pocket for months) has "called" him the Republican nominee, and it has to be said in this case there's good reason for saying so.

Little time remains for anyone else to figure out a way to solve the Trump problem. Next Tuesday, March 1, is "super Tuesday," when not one but a whole mass of states - Alabama, Alaska, Arkansas, Colorado, Georgia, Massachusetts, Minnesota, Oklahoma, Tennessee, Texas, Vermont, Virginia, and Wyoming - make their decisions. They will make those decisions in large part on the basis of national perceptions, and presumably for some of the same reasons the states voting so far have done so. Trump is by far best positioned to present himself as the nominee-in-waiting, will doubtless be regularly described as such between here and there, and he stands a good chance of sweeping nearly all those states. (The biggest exception could be Texas, but if Trump wins there, which seems plausible, he could destroy Ted Cruz' candidacy.) And if he does sweep those states, his delegate lead could become hard for anyone else to catch up to.

The Republican contest isn't quite yet a done deal, but this time a week from now, barring a case of late concerns or buyer remorsem it might be. - rs

Scalia and a Native justice

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So even before Associate Justice of the United States Supreme Court Anton Scalia is cold in the ground, lines are being drawn over his replacement.

Scalia was a self-described “originalist” in interpreting the Constitution and Bill of Rights. In other words, he sought to apply what the founders intended in the context of their times. Just in terms of the Second Amendment, “well-regulated” militia did not mean regulation in the way we perceive the word. Clocks have regulators; it meant well-trained and reliable, not regulated-by-the-government.”

Kinda like when Hamlet told Ophelia to “get thee to a nunnery.” If you pull out a real Oxford English Dictionary and study the etymology of Shakespeare's time, “nunnery” did not mean a convent. It was English slang back then for “whorehouse.” Changes the whole meaning of the joke. That's “originalism.”

We will not have another “originalist” the likes of Scalia on the Supreme in our times. Italians aren't part of the perpetually indignant and offended identity politics of the Progressive era who need pandering to. They just work, think, build and invent stuff: not qualifications necessary or desired for high office. Scalia prevailed over an egregious decision having to do with death row cases – depriving post-trail exculpatory evidence of consideration during appeals – but on balance he held the court to weather.

No, the next appointee will be an LGBT/disenfranchised/victimized irritated type with an Ivy League law degree. There are, one is sure, decent folks even amongst this ilk, but even were Obama to break stride and appoint, say, Jesus Christ, juris doctor, for the job, the GOP would obstruct it. So it is business as usual in Washington, D.C.

But since identity politics is sure to frame the appointment, why not appoint a Native American? As I mentioned in a brief brain-fart the other day on Facebook, surely no more disenfranchised and screwed-over population exists in this country than the American Indian.

All nine Supreme Court seats are occupied by lawyers but there is no Constitutional mandate that a High Court member has to have a law degree. Surprised? I was, too. Non-lawyers have served in that high office before, the last being Stanley Reed, who was appointed to Supreme Court Justice in 1938 and served until 1957. He never held a law degree, although he was admitted to the bar. Robert H. Jackson joined the High Court in 1941, retiring in 1954 without ever having obtained a law degree, although he did attend one year of law school at Albany.

Nor is there a minimum age: the legendary Joseph Story took his place on the Supreme Court at the tender age of 32, back in 1811.

The Constitution in fact specifies neither age nor professional minimum requirements to serve on the High Court. So why are fat-cat juris doctorates (left or right) the only possibility for nomination these days?

One answer lurks in the composition of the United States Congress. Lawyers comprise the single largest voting block in the Congress: 43 percent. Sixty per cent of U.S. Senators are lawyers; 37.2 per cent of House members are attorneys.

This is not a new problem.

According to Legal Reform Now, “Since the time of de Tocqueville (1841), students of American government have noted the over representation of lawyers in American politics (se e.g., Hyneman 1940; Hurst 1950; Matthews 1954, 1960; Schlesinger 1957; Derge 1959; Eulau and Sprague 1964; Keefe and Ogul 1989: 117-18). And it seems that the more important the political office, the more lawyers who occupy that office.”

What seems to have changed is the nature and motivations of lawyer-congressmen. Continues Legal Reform's analysis:

“With the large number of lawyers descending on Washington in the 1970's to enforce newly passed civil rights laws in an increasingly liberal culture, the goal of lawyers changed from doing good to simply increasing their power and influence. And in a very short time their income too.

“As in many other aspects of our society there was a change from meeting one’s public responsibility to attempting to enrich oneself. Even at the expense of one's fellow citizens.

“In To Kill a Mockingbird [Harper Lee, RIP] Gregory Peck played Atticus Finch, a white lawyer using a rifle to defend a black man’s life by blocking the entry to a jailhouse door. That was in the 1930s. How many lawyers today would do the same to defend an individual’s right to justice? Very few.”

Maybe the one physicist, the one microbiologist, the one chemist, or one or two of the eight engineers (all in the House, with the exception of one Senator who is an engineer), or one or two of the
29 farmers, ranchers, or cattle farm owners (four in the Senate, 25 in the House) or the two almond-growers and two vintners serving might have the testicular fortitude to take up arms against the genuine evils depicted by Harper Lee or Mark Twain. The lawyers in Congress? They'd cop a plea bargain for their bigot and collect their fee.

But I digress. Scolding greed-head lawyers in Congress and their increasingly pernicious presence in the press is like shooting fish in a barrel. But it is time we rid ourselves of this time-honored tradition of lawyers selecting lawyers to govern us.

Lawyer Obama should consider a Native American tribal elder to replace Scalia, pedigreed or not in the rubber-stamp of law school. That would appeal to his identity politics and quiet down the Republicans. My friend Lisa Reimers of the Iliamna Village on Bristol Bay in Alaska would be an elegant choice. She knows the consequences of unilateral EPA actions. Or if it has to be a lawyer, Howard Funke of Idaho, of the Sho-Ban Tribe, who fought and won the Swan Falls Dam case for Indians and migratory fish.

You've had eight years to do something right, Mister President. Here is your chance. Appoint a wise Native.

Constitutional convention – not

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You hear a lot of talk these days of the need for a “constitutional convention” to take up this-that-or-the-other subject. Often, this is followed by some sort of simplistic statement that such action would be “no big deal” and “the longer we put it off the harder it will be.”

Well, as in most chatter dealing with changing our founding documents, it would be a much bigger deal to get done than most folks think. For two reasons. It’s never been done and no one can agree for what purpose. A single subject? Or many? How many? If once called, would it ever end?

Yes, Article V of our Constitution says either Congress can do it or the states can if two-thirds of them agree on the need. What’s at odds is that single subject unknown - or many. And that’s the stickler.

There are two schools of legal thought. First, many scholars argue for the wide-open convention. Suppose you wanted to amend the Constitution to require a balanced budget be set by Congress each session. Just that. Only that. Whether called for that purpose by Congress or two-thirds of the states, these legal eagles say delegates could go off on any subject and the whole thing could devolve into a real mess. Suddenly, there are abortion rights, women’s health, immigration or campaign spending and hundreds of delegates pulling in every direction.

The other thinking is all in attendance would be requied to stick to the one subject stated in “the call.” Problem is, once the gavel sounds to get things going, who enforces the one issue agenda? Under what authority? There’s been no test resulting in a black-and-white rule, either.

The last federal convention was in 1787 when Congress set up this whole idea. Founding fathers had required all 13 states agree on a single issue. Good thought. Impossible to achieve. Delegates argued over lots of ways to fix things but finally settled on Congress convening a convention unilaterally or at the behest of two-thirds of the states. Period.

But the issue of scope for such gatherings was never put to bed. Suppose two-thirds want a convention. That meets the legal requirement. But what if, in those requests, there’s more than one subject? Two-thirds agree on the need for the convention but not on what business is to be done. Does Congress act or wait until 34 states settle on a single subject?

Other legal voices think the two-thirds threshold is fine but subject matter would have to be confined to a single topic. Good theory. Never tested.

Fact is, an Article V convention requested by the states has never been called for these very reasons. The current Constitution says Congress “shall” call them when the required number of states petition, but it does not say for what purpose or how many purposes.

There have been two fairly recent efforts to use the Constitution’s “Necessary and Proper” clause to deal with the issue. Twice in the 1970's, the Senate unanimously approved the idea. Both times, it died in the House. How little times have changed.

So, the subject of convening a Constitutional Convention is a lot murkier than most folks believe. And the thought of a “runaway convention” with dozens of subjects, hundreds of delegates and thousands of votes terrifies the best constitutional lawyers. Not to mention a few nervous politicians.

Further, if such a free-wheeling event did end, whatever actions were taken would have to be ratified by two-thirds of the states. Any bets on that?

All 27 amendments to the U.S. Constitution have been done by Congress. States have held their own conventions to deal with their own documents more than 600 times with relatively little fuss.

So, if you’re worried about the 1st, 2nd, 4th or 15th or any other amendment to the federal Constitution being changed while you sleep, forget it. Only in your dreams.

First take/three

The many people who have wanted the Republican presidential campaign to boil down to a manageable number have got what they want - almost.

There's now three, nearly. Five, for the moment.

Because the catch is, John Kasich and Ben Carson are still in.

Neither of them will be the nominee, and probably they are well aware of that. But neither is inclined to leave. Both seem to be doing well enough in fundraising - and they occupy distinctive enough niches - that they can keep on offering messages for a while. (Kasich seems to want to stay in until his home state of Ohio votes.) In the process, they will keep on typing up blocks of votes. Small blocks, but possibly significant anyway.

As it stands, Donald Trump seems well positioned for the nomination. If as polling indicates he wins Nevada in tomorrow's caucuses, his track record will be three wins and (in the distant Iowa past) a second place, enough to position him as a clear frontrunner and create a bandwagon effect for the massive SEC primary on March 1, barely a week from now. If the national narrative going into that is that Trump is running well ahead of everyone else, he will become very hard to stop.

If anyone does stop him, that would have to be Ted Cruz or Marco Rubio, who more or less share a second-place spot. But aside from a Cruz win in Texas and Rubio in Florida (and Trump could very well win both of those states anyway), it's getting ever harder to see where they break through and actually beat the Donald.

Time is getting short. - rs