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Posts published in February 2016

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

Overlapping campaigns

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Thursday night, Boise Democrats had two schedule-overlapping political events to choose from, both with reverberations in presidential politics.

One was the campaign kick off, at a downtown eatery, for TJ Thomson who is running for Ada County commissioner. Thomson’s political task is difficult (while Boise leans Democratic, Ada overall leans Republican), but not impossible for a well-organized candidate. And Thomson, a young and energetic candidate, will be nothing if not organized. For evidence, consider the 2008 primary (not general) campaign in Idaho for Barack Obama. It was extremely well organized – Obama won – and Thomson was one of its main leaders. A year later he was elected to the Boise City Council, where he still serves.

The other event was a campaign organizing event held at the home of former Representative Larry La Rocco, for a Democratic presidential contender of 2008 and today: Hillary Clinton. Some Democrats tried to scramble from one event to another.

I’m not suggesting here that these activities neatly split Clinton Democrats from those backing Vermont Senator Bernie Sanders; that didn’t seem to be the case. Based on what I heard from a bunch of Idaho Democrats this week, however, the race between the two in Idaho appears to be highly competitive. It is, in other words, a lot different from 2008 battle when one candidate, Obama, swept Idaho so decisively that Idaho became one of his best nomination wins anywhere in the country.

This time, in contrast, no one seemed entirely confident in predicting who will prevail when Idaho Democrats caucus on March 22.

Anecdotes I heard seem to suggest Idaho Democrats are splitting much like many of their counterparts elsewhere. Younger party members are said to be trending toward Sanders, their elders – and especially many people in party or elective positions – more toward Clinton. The differences didn’t appear to break much on policy or idea grounds. Sanders’ newness to the party and his Socialist tag were concerns on one side; fatigue, dynastic and trust issues linked to Clinton were problems cited on the other. Those disabilities were mentioned more than the assets the two candidates bring, which may have something to do simply with being a Democrat in blood-red Idaho.

There’s not much new in any of this for a close watcher of the national political contest, which seems to be tightening and becoming ever more competitive, and is getting ever more closely parsed. If Sanders does well in Nevada (an election still in the future as this was written), the nomination battle may become extremely close.

In a carefully-calculated chart labeled “Where Bernie Sanders needs to win,” polling analyst Nate Silver last week isolated states where Sanders and Clinton should, based on polling, demographic and other factors, do relatively well or badly. That chart suggested Sanders ought to do better than average in Idaho, winning in the Gem State by 11 percentage points if Clinton is ahead nationally by 12 points; and Sanders winning Idaho by a blowout 23 points if the two are tied nationally.

At least, that’s what a statistical analysis says. Clinton will have a large chunk of the Idaho Democratic leadership and a party base, and her campaign apparently has had staffers on the ground in Idaho, already at work organizing.

If the race is still competitive a month from now, which looks at least possible, Idaho really could become a Democratic battleground.

Three revolts

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Ron Faucheux from RealClearPolitics says there is not one big populist voter revolt, but three.

The first revolt has been percolating for nearly a decade. It is an insurgency targeted against moral compromise and it is being waged within –– and, in some ways, against –– the Republican Party. Powered at the grass roots by the Tea Party and on Capitol Hill by the Freedom Caucus, this movement has pulled the Republican Party well to the right of where it was just a few years ago . . .

The second revolt is aimed at wealth inequality and corporate corruption. This revolt operates mostly within the Democratic Party, although many disaffected independents — especially younger voters –– find the cause appealing. . . .

The third revolt is one directed at the political system itself. . .

While both the left and right share a growing contempt for politics as usual, the impetus for this popular uprising comes mostly from center-right voters upset by government paralysis and incompetence. It is a movement built upon cynicism –– and anger at dodgy politicians, broken institutions and increasing demands for political correctness. No longer content to just tweak the system, they want to knock it down.

I believe he misses the mark on what he describes as the third revolt. First, he errs when he believes there is a two dimensional measure in politics. While our two party election system does force voters to select between the leftward coalition – called the Democrats, and the rightward coalition, called the Republicans, individual voters think in more dimensions. What he calls a third revolt is not a revolt, but an independent voter movement by less partisan voters who are angry over our failing Democracy. Crony capitalism, money buying politics, anti democratic election laws are the enemy, and the current Republican and Democratic party operatives, insiders, electeds and donor bases are the perceived culprits. From both parties.

It may seem like a right of center movement to Mr. Faucheux because nationally Trump is the only candidate who speaks to the movement for voters who are on “the right”. But On the Democratic side, Bernie Sanders also speaks to the independent movement as well as Mr. Faucheux’s second revolt. (Which is why Sanders will do better than the professionals expect among independent movement voters).

However, Oregon’s version of the independent movement could express itself not by a Democratic or Republican outsider such as Trump or Sanders, but by candidates who can actually run as an Indpendent Party (IPO) member. Since the IPO now has major party status, it will be acting as a platform for community leaders running for office, representing this broad based movement. The best will be able to express the independent movement’s extreme displeasure with how the Democratic and Republican operatives, electeds and donor bases have failed to care for our Democracy, and our common good.

If one or more IPO candidates are able to break through the Democratic/Republican hegemony over politics, it would put Oregon on the map as the spear tip of the independent movement.

First take/deciders

The upcoming contests in the next few days - South Carolina for Republicans, Nevada for Democrats - may do a lot to shape the contest to come.

How close will be the Hillary Clinton/Bernie Sanders contest? Nevada may tell us.

And, how difficult will it be to block Donald Trump from the Republican Presidential nomination? South Carolina, where polling has varied but mostly has given Trump a big lead, may tell us.

Public Policy Polling released a South Carolina poll yesterday showing Trump at "35% to 18% each for Ted Cruz and Marco Rubio, 10% for John Kasich, and 7% each for Jeb Bush and Ben Carson."

So who are these deciders in South Carolina?

Trump's support in South Carolina is built on a base of voters among whom religious and racial intolerance pervades. Among the beliefs of his supporters:

-70% think the Confederate flag should still be flying over the State Capital, to only 20% who agree with it being taken down. In fact 38% of Trump voters say they wish the South had won the Civil War to only 24% glad the North won and 38% who aren't sure. Overall just 36% of Republican primary voters in the state are glad the North emerged victorious to 30% for the South, but Trump's the only one whose supporters actually wish the South had won.

-By an 80/9 spread, Trump voters support his proposed ban on Muslims entering the United States. In fact 31% would support a ban on homosexuals entering the United States as well, something no more than 17% of anyone else's voters think is a good idea. There's also 62/23 support among Trump voters for creating a national database of Muslims and 40/36 support for shutting down all the mosques in the United States, something no one else's voters back. Only 44% of Trump voters think the practice of Islam should even be legal at all in the United States, to 33% who think it should be illegal. To put all the views toward Muslims in context though, 32% of Trump voters continue to believe the policy of Japanese internment during World War II was a good one, compared to only 33% who oppose it and 35% who have no opinion one way or another.

There's your deciders.

Audit time

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An internal audit of the Ada County Treasurer’s office concentrating on the “Public Administrator” duties has turned up assorted critical issues. The issues all revolve around the estates of people who have died with no will and no living relatives.

A former Public Administrator and a state building security chief have been charged with assorted felonies over theft including a $31,000 check which was misappropriated. The internal audit obtained Tuesday by the GUARDIAN was performed in addition to the forensic audit.

We poked fun at the Ada Treasurer website where they sold personal items, including bras. Readers noted the web auction site probably cost more than it brought in. The auditors not only agreed with the GUARDIAN readers, they revealed that 25% of the sales were to Treasurer employees and 46% of the sales were to other county employees.

There was even an example of an employee putting a sticky note on a box of ammo to “reserve” it. Treasurer Vicky McIntyre told the GUARDIAN that all guns and ammo were sold to a registered firearms dealer, hence the note. She added, “They want the public to believe what they want to fabricate.”

Here’s an excerpt from the report: “Within the Treasurer’s Office, one of the seven Treasurer’s Office employees who purchased estate property consistently paid less than the minimum bid. This employee purchased four items for a total of $15 less than minimum bid. The same employee purchased a large display case of hunting knives that had been listed on e-Bay for $75, but was sold to the employee for $35.”

Much of the auditor’s committee report duplicated what the forensic auditor report noted previously.

The committee of five, a mix of county elected officials and department heads, noted the work load for the public administrator role had nearly doubled in the past few years and recommended that accounting practices and personnel assignments be initiated to create fiscal safeguards to prevent future problems.

The entire REPORT: Combined final report PDF (2)

Experience counts

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The national political circus - already disappointing and embarrassing - has moved to South Carolina. For reasons far beyond understanding, that’s the home of the dirtiest, most lie-filled, underhanded, just plain contemptible campaigning in the entire country. Disappointment and embarrassment readings are being raised - or deeply lowered - to a whole new level. Both national parties are to blame. Neither seems able to rise above the South Carolina political garbage. Or, willing to.

But, even before entering the fray in the Palmetto State, the entire campaign has been soiled from the get-go. It’s gone on so long we’ve long-ago lost our revulsion at some of the tactics and wild claims, surrendering to the oft-repeated words, “Well, that’s just how it is.”

One of the most repeated statements swirling in this flotsam is we’re “angry.” We’re “mad” government seems unresponsive to our national needs. We’re “out-of-patience” with politicians who seem responsive only to the rich - who won’t work on our concerns like infrastructure, jobs, climate change, immigration, clean water, ending spending on useless wars and seriously addressing gun problems killing our kids. We’re nationally pissed and don’t mind shouting it at the top of our lungs.

I can accept all that - can definitely participate in such discussions with my own loud, angry voice. “Mad as Hell,” the man said. Me, too!

But what makes absolutely no sense is the accompanying demand that the next president and the next congress be people with absolutely no political backgrounds - no prior service in elective politics - no understanding of how to work the levers of government or how to make the attached machinery work the way it must - work the way we want it to. Primary election results, so far, seem to be saying just that. If any candidate is sullied with requisite experience to be effective, that person has been soundly rejected. Right, Jeb? Right, Chris? Right, Martin?

Suppose a doctor concluded your physical exam by saying, “You have a serious, life-threatening medical condition.” What would be your reaction? Tell the doctor he/she was wrong? Insist on having a plumber review the paperwork? Submit to a new physical exam conducted by a shoe salesman? Or, given the seriousness of the situation, would you seek a second opinion by a medical specialist familiar with your problem? Put me down in that last category.

Suppose you wanted to fly to the other side of the country. Would you absolutely insist the pilot be someone who’d never flown before? Would you ask a municipal worker, afraid of heights, to fly the plane? Would you select “Hope-This-Works” airline over, say, Delta? Or, would you want someone in the cockpit with a bit of grey hair and a few thousand hours as “pilot-in-command?” You know which one I’d want.

Why has the demand for lack of experience been written into political job descriptions for candidates? Why are political aspirants suddenly being subjected to tests eliminating expertise? Would these same people swap plumbers for physicians - shoe salesmen for seasoned pilots? Me thinks not.

While the fault in this loud demand for a commander-in-chief with no previous qualifications lies mostly with the ignorant voices, it also goes beyond that. To me, the blame sits squarely with the major national political parties - both of ‘em. They’ve failed to recruit, groom and put forward legitimate candidates acceptable to a wide range of voters. Especially at the presidential and congressional levels.

The dugout bench in both their ballparks seem woefully slim. There are no second, third or fourth tiers of qualified and experienced “candidates-in-waiting.” Statehouses - normally the “farm clubs” for political newcomers - apparently are not being searched for men and women effective at their jobs. State legislatures and county courthouses apparently haven’t been closely examined to find new voices closest to the people. If they have, I’m not seeing the names or hearing new, impressive voices.

After the 2008 and 2012 elections, Republican professionals paid big bucks for outside advice on how to become more relevant, more responsive to a fast-changing electorate. They paid the bucks, gave the findings some lip service and promptly seemed to have dropped the whole thing in the round file. Democrats, with less fanfare, had retreats and outside examinations for the same purpose. Again, whatever was discussed was ignored.

More than anything else, the failure of both parties to regain some sort of relevance has produced the Trumps, Cruzes, Carsons, a retreaded Clinton and a qualified but unheard of O’Malley.

Big money - big, BIG money - has replaced the roles previously occupied by national political parties. Trump’s willingness to spend whatever it takes, the Koch’s with their ALEC and hundreds of millions to spend, Adelson’s casino-backed billions funding empty suits and hollow voices - these are the driving forces of our national political affairs. Not experiencd political professionals.

Both parties need rebuilding. Both need new and better leadership at the staff and professional levels. Both need to retake control from the moneyed class and keep it.

There’s one shared reason why Reagan, Johnson, Dole, Ford, Kennedy, Roosevelt, Truman, Humphries, Hatfield, Hatfield, Church, Goldwater, Dirksen, Foley, Rockefeller and other national political icons were successful. While each came to the job with different perspectives, they all came with experience. Years and years of it.

It’s not just meaningless - and too often mindless - words pouring out of supremely unqualified candidates we need to ignore. It’s this “angry” demand for political inexperience. Look what it’s produced so far.

First take/roads

It's been most of three years since I last rode the streets of Idaho Falls and Pocatello. However kind the interim has been to me, it's been hell on the roads.

I haven't noticed it so much in southwestern Idaho - the roads around Boise wear down too, but in a normal way - but the eastern sector roads were coming apart. Yes, this is pothole season, with relatively warm weather following a significant amount of snow and ice, remnants of which are still visible in the eastern cities. But those roads are in a bad way.

The sheer number and ugliness of road holes, and rugged, coming-apart surfaces, are striking, at present the worst I would point to around the Northwest. Not the only bad roads, but the worst overall.

Not sure what accounts for this. But let's hope the highway planners get ambitious about this are this year. - rs

Travel plans: I'm in Twin Falls as this is written. I'll be on the morning talk show at KLIX around 8:15, and at noon at the new Twin Falls visitor center to sign books.