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Posts published in March 2016

Oyez oyez!


We get our supreme court all settled down from welcoming the improving health of the court’s practical realist, and just barely get the chairs rearranged from electing a new chief justice, when the table gets tipped over.

Chief Justice Jones’ decision to hang it up comes as a complete surprise to most of us. Although the Chief is just turning 74, judges tend not to slow down so early – especially if one has just been elected chief. Nevertheless, it’s done, and of course, we wish him well. Life will go on; the hat is already filled with new names.

The judicial election will be with the normal state primary for legislative and state offices in May. The overwhelming problem will be name identification, and determination of qualifications. The three candidates are reasonably well known around their own legal circles and communities, but their names are certainly not household words. I suspect that more than some people are going to say, “Clive who? Isn’t he that rancher from Nevada?”

This means within the next six to eight weeks, each of the three must vie with the local politicians everywhere and the drumbeat from the national presidential machinations, not only to get themselves introduced into the far crannies of the state but also to offer the voter some rational reason to select one of them over the others. A daunting task.

Whatever they can muster will be all that the people of Idaho will have to use in making up their minds on the individual who will hold an undivided one-fifth of the supreme judicial power of the state. Or perhaps to deselect one of them, and leave the other two to run it off in November; which will only compound and prolong the confusion.

Of all the methods of selecting judges, their popular election at periodic intervals seems the least satisfactory. The draftsmen of the U.S. Constitution believed that an independent judiciary was an essential ingredient of government, and they guaranteed this independence by making judicial office a lifetime position. This was a controversial step then, and remains such today. There are some – fortunately not many -- who advocate taking away the independence of the judiciary, and trading it in for popularly elected judges.

Idaho follows most of the states in disregarding lifetime appointments. In two area of judicial selection, for justices of the supreme court and for judges of the district court, Idaho follows the popular election at regular intervals. I was appointed to the bench to fill out the term of my predecessor. I ran three times for reelection, each time with trepidation that someone would take me on – but I was unopposed each time. I am not sure how I would have fared in a contested election; I detest campaigning and have no stomach for the contest.

Idaho also uses an appointment system with retention elections for selection of magistrates and judges of the court of appeals. This is a system coming into use in a growing number of states. The judge is appointed from a select, vetted list for a specific term of years, and then stands for a retention election – yes or no. This method retains most of the characteristics of judicial independence, but injects an element of public interest and control in the ability to turn out the unsatisfactory jurist. It prevents the possibility of demagoguery in electing the most popular candidate, but does offer a trap door to dump the unwanted.

On balance, it seems that the magistrates’ courts and the court of appeals benefit from the lack of upheaval and consternation that the supreme court and district courts endure every time there is a contested election. The same system could be carried over to rest of the courts in Idaho, albeit with a constitutional amendment.

Perhaps, as the judicial campaigns for Justice Jones’ seat unwinds, and the difficulties and uncertainties of our current method of judicial selection begin to emerge, a closer examination of alternative methods of the selection of judicial officers might be in order.

First take/Idaho filings

Not a lot of thrills among the Idaho filings, though given the general quietude before the filing deadline you could say there's some surprise that as many candidates filed as did.

Maybe the most eye-catching was the expansion of the field for the open Supreme Court seat (being vacated by Jim Jones) from two to six. The picture there has changed a great deal, fast.

All three congressional offices have contests. The Democrats who filed in each case have the disadvantage (among other things) of starting cold relatively late in the cycle. But all three have good stories and show signs of being compelling candidates. And both U.S. House incumbents have Republican primary contests as well. Probably not strong contests, but in this year who knows what might develop?

The legislative picture overall looks not too far from normal. A relative handful have initial indications of interest, though as the campaign period formally kicks in you shouldn't expect that the next legislature will look a lot different from the last one.

More to come. - rs

The split


Here, on Tuesday night and since, is a map to ponder: The Idaho split between counties whose Republicans voted for businessman Donald Trump and those who preferred Senator Ted Cruz.

I’ve been trying to align the collection of counties for either candidate with any other kind of lineup, and nothing obvious suggests itself. This may take a little creativity.

There were a dozen Trump counties, scooped out of the center of the state: from the north, Shoshone, Clearwater, Lewis, Idaho, Lemhi, Adams, Valley, Custer, Boise, Elmore, Blaine and Camas. They occupy roughly the geographic center of the state and its most lightly populated regions too; the state’s largest wilderness areas are there, but not one of the state’s 16 largest cities. (Mountain Home was the largest city in a county that went for Trump.)

But, although Cruz won all of the state’s larger cities, many of the state’s smallest, most sparsely populated and most rural counties, like Clark, Oneida, Owyhee, Lincoln, Butte and Adams, also were Cruz counties.

Analyses of counties that were more or less sparsely populated, or included more or fewer college graduates, didn’t seem to match closely with the county breakdowns.

The Trump counties included the state’s most Democratic county, Blaine, and one or two other relatively Democratic counties (Shoshone, Lewis), but Blaine Democrats are quite different from Shoshone Democrats (or those in most of the other counties). And most of these counties are as Republican as any in Idaho. Trump’s message on the economy and joblessness may have hit in some of these places, though, since counties like Adams, Clearwater and Shoshone have had especially consistent struggles with unemployment for a couple of decades.

The 32 Cruz counties occupy most of southern Idaho, including nearly all the areas touched by an interstate or near a regional center, and the north along Highway 95 and the Washington border from Lewiston to Canada. These regions, north and south, are very different kinds of areas.

The closest to uniformity was the fourth-place finish for Ohio Governor John Kasich in every county but Blaine – Idaho’s most Democratic.

The speculation that Mormons would tend to support Florida Senator Marco Rubio came to little, apart from the point that all of the counties where Rubio reached second place – like Bonneville, Bannock, Madison, Jefferson, Teton, and Oneida – were bunched in eastern Idaho, mostly in counties with a very strong LDS presence. Rubio’s stop in Idaho Falls, his one counterpart stop alongside Boise in the weekend before the election, was surely no accident. Nor were the endorsements from people either leading in (businessman Frank VanderSloot) or close to (Senator Jim Risch) the LDS community.

So why did Cruz prevail in those areas? The guess here is that last week was a bad news stretch for Rubio, and word spread that his chances of getting the nomination were crashing. That would have led to a choice between the ideological and church-oriented Cruz and the more free-form (and more secular) angry Trump. (Kasich, widely perceived – however inaccurately – as a moderate, likely wasn’t a serious factor.) In that framework, the choice for many Mormons probably would have become clear.

Looked at that way, from a social and organizational point of view, the map starts to make more sense. The areas with large conservative (but not party) organizations, and those including the larger church organizations, tend to match up well with the Cruz counties. The small town areas relatively out of the pull of regional centers tended to go for Trump.

What will be worth watching is this: Will different kind of political appeals, different kinds of politics and campaigning, start to matter in these two types of areas?

First take/court filings

More will of course be following on the state candidate filings that wrap up (in both Oregon and Idaho, as it happens) this week. But one in Idaho merits a specific mention.

It's not a partisan office: This one is for the Idaho Supreme Court, the seat now held by Justice Jim Jones.

(It's designated as seat 3, of five, and should be so noted on the ballot, but Idaho's ballots for generations have instead described the seats as those being held by the named incumbent, so you get things like "candidates John Smith and Ed Williams, for the seat now held by John Smith," which seems like an irrational favoritism toward the incumbent that we see nowhere on the ballot outside of the court system. The seats should be described as "Seat 3," or whatever.)

Jones was not appointed to the court; he got there in the way constitutional framers anticipated, by election, and was re-elected once. He is now completing a dozen years on the bench, a match to eight years as state attorney general back in the 80s. His decision, just announced, to not run again means the seat will again be filled by election, not appointment.

Two candidates have (as of this morning; the deadline is tomorrow) filed. One is Breck Seiniger, a well known Boise attorney long in private practice. The other, who probably has the edge, is a long-time deputy attorney general named Clive Strong.

That short-hand of Strong comes nowhere close to doing justice. He has for decades, working for attorneys general both Republican and Democratic, managed the natural resources division of the office, a critical place especially in recent decades. He has been a linchpin figure in so many critical areas for so long that many state officials almost consider him an essential resource. Last year, when I developed a ranked list of the most currently-influential Idahoans, I placed Strong at number 25. (I will admit to some bias, having worked with him on a couple of book projects, but check around Idaho state government and you'll probably soon find my take on him isn't unusual.)

Here's the neat thing about the Supreme Court filing. Back in 1983, not long after becoming AG, Jones hired Strong to work for him. Now there's the prospect that a Jones move, in this case his resignation, may allow for Strong's next role in influencing Idaho.

This looks to be the only contested Supreme Court race in Idaho this year. Keep an eye on it. - rs

Senators’ hypocrisy


There are two qualities a voter should never tolerate in their elected representatives: Hypocrisy; and, actions which show no respect for the intelligence of their constituents.

Idaho’s two U.S. Senators, Mike Crapo and Jim Risch, possess both qualities in abundance.

Idaho’s two senators joined with their fellow Republican senators in announcing under no circumstances would they hold a hearing or even meet with any nominee President Barack Obama will submit to take the seat held for many years with distinction by the late Justice Antonin Scalia.

They have wrapped this dereliction of duty in flowery language about letting the people decide in the November elections whether a Scalia replacement and several other expected vacancies in a new presidential term will be nominated by another Democrat or by a Republican.

It is a crass form of pure partisanship which has hamstrung Congress from doing much substantive work and has in part engendered the anger that is driving the candidacy of Donald Trump.

Recall, if you will, the pronouncement by then Minority but now Majority Leader Mitch McConnell, the senior senator from Kentucky, who on the first day Barack Obama took office said the primary purpose of Republicans was to see that Obama would be a one term president. No honeymoon, no olive branch about working together to find the greatest good for the greatest number. No siree, the election of an African-American meant total and open warfare.

Make no mistake, either, that this attitude was and is a thinly disguised form of racism, pure and simple. So forget about the good of the public, forget about compromise and actually doing something to earn their paycheck.

A funny thing happened though on the way to the scaffold Senator McConnell and his colleagues were constructing for the President: be darned if he didn’t win a second term. Looking today at the field vying to succeed President Obama there’s little doubt he would win a third term except for that pesky thing called a Constitution an amendment to which limits a president to two consecutive terms.

It appears these Republican senators, many of whom say they are strict constructionists (Which means interpret the Constitution as it was meant at the time it was written and none of this making law by reinterpreting it in a modern context), don’t seem to grasp the difference between an active and passive verb.

Article II, Section 2 seems quite clear: “The President shall have Power, by and with the advice and consent of the Senate. . . .and he shall nominate and by and with the advice and consent of the Senate, shall appoint. . . .judges of the Supreme Court. . . .”

The Constitution says the President shall nominate justices and the Senate is to confirm or deny under its mandate “to advise and consent.” It doesn’t say “may,” and anyone who says the Senate can put off until a more convenient time politically to take up a nomination is guilty of a creative interpretation of the Senate’s responsibility that has no legal basis.

The Constitution also sets fixed terms for those elected to these offices and it is a given that they will do their duties for the full term.

The President will do his duty and will nominate a worthy candidate.
The Senate’s duty is to take up and give due consideration. To sit on a nomination for ten months is dereliction of duty, pure and simple, and senators advocating this dereliction ought in this writer’s opinion to be impeached and removed from office.

Stop and think for just a minute about what Senators Crapo and Risch are saying. If you follow their so called logic a senator like Mike Crapo would stop voting ten months before his term ends because it is a presidential election year and the voters might chose a Democrat for the Senate seat he holds and might even elect another Democrat as president.

It sounds stupid because it is stupid, just as stupid as the charade they are attempting to pull off.

It is crass hypocrisy, blatant partisanship, an abdication of their responsibilities, a dereliction of their duties and an insult to your intelligence.

If either of our senators had an ounce of courage or any backbone they’d tell their so-called Leader to take a hike and would say they know what their job calls them to do. Alas, they’ll as usual go along to get along because they know all they need next to their name on the ballot is the R and they’ll be returned to office regardless. Tis a pity.

An actual pivot?


In primary season, elections in this or that state often are called "pivotal." Far fewer really are. We won't know for sure (you never do) for a while, but in the Democratic race for president Michigan may have been an actual pivot.

There is of course the point that, had the polling been correct and Hillary Clinton won Michigan decisively (as she overwhelmingly won Mississippi the same day), Sanders would have been on the ropes. Even as matters stand, he's presently far behind - by about 200 - in the delegate count. And he won Michigan only by a modest margin.

But, well, polling was not correct, and to a degree that will go down in political lore. Harry Enten at the FiveThirtyEight site reflected, "Bernie Sanders made folks like me eat a stack of humble pie on Tuesday night. He won the Michigan primary over Hillary Clinton, 50 percent to 48 percent, when not a single poll taken over the last month had Clinton leading by less than 5 percentage points. In fact, many had her lead at 20 percentage points or higher. Sanders’s win in Michigan was one of the greatest upsets in modern political history."

That means, as people cast their ballots, they may pay a little less attention to the polling and to who's ahead. (And yes, those expectation factors really do drive votes.)

The Democratic race had been getting less attention in the last couple of weeks than the Republican, which hurts Sanders. The Michigan result provides a compelling argument for increasing attention given to the Democrats.

And, while Mississippi is a lot like many of the southern states which have been voting (strongly) for Clinton, those states are all gone now - all voted. The big votes ahead, in states like Ohio, Illinois, New York, California, will be much more like Michigan than like those southern states. Is something going on there that Sanders may be tapping into?

None of this is a prediction for a Sanders win. But the presidential abruptly looks different than it did yesterday.

When losers win


Time to turn over a few rocks in our national embarrassment laughingly called a “Presidential Campaign” and expose some of the hypocrisy and just plain smelly business being engaged in by some of the entrants.

One question I hear a lot is “Why do these people with no chance of winning get in, stay in so long and spend so much?” Ah, the multi-million dollar question.

Using information from the Center for Public Integrity - one outfit that truly lives up to its name - the answer is bucks. Big bucks! Even big, BIG bucks!!! Bucks for the never-had-a-chance candidate, political parties and some of the campaign pro’s that make a fine living whether their horse wins or not.

The Center used Ben Carson as an example. Never had a legitimate shot from the get-go and peaked at about six-percent. Look up the word “loser” in your old dictionary and his picture is right there. No chance. No how. No time.

So, he’s suspending his campaign. “It was a complete waste of time and money,” you say. Well, not exactly. You see, what’s left for Ben is a mailing list of 700,000 campaign donors. A mailing list only he has. A mailing list campaign professionals will pay those big bucks for. A mailing list the National GOP would dearly love to add to its data base.

One thing that makes this list so special is what we’ll call the “uniqueness” of Carson. There are thousands of new names that may never have given a dime to any other campaign at any time. Fresh donor “blood,” so to speak. Names, addresses, phone numbers. Very specific information. Virgin donor territory. Each name worth bucks.

“How much,” you ask? The Center figures each name will sell for a minimum of $5.00. Times 700,000. That’s about $3,500,000. In other words, that computerized list can make ol’ Doc Ben a very rich man.

Those numbers come from Walter Lukens who owns Lukens Company - a direct marketing outfit. He’s got a very long list of politicians including John McCain and Ted Cruz. Now, if Carson is willing to personally sign solicitations for other political committees renting that data base, the price per name goes up. Substantially. Even if he just “rents” the information, Lukens believes Carson can make $4 million or so over the next three years.

In fact, Lukens says “As long as he continues to be a viable spokesman for his unique political perspective, he can make money on that list for ever and ever and ever.” So, he’ll keep up those “chicken dinner” shows. He’s already announced he’ll head a new nom-profit (?) foundation.”

And Larry Ross, speaking for the Carson campaign, said “Dr. Carson intends to stay in public life as long as he continues to receive revenue and support of “We The People...” In plain English, as long as the dollars keep coming in, Carson will play the game.

This is not a new scam. Santorum, Fiorina, Huckabee, Walker, Christie and a bucket full of others have done it many times. The most accomplished grifter has been Gingrich. Newt got into the 2008 and 2012 campaigns without a prayer of winning. But, comparing the cost of his videos, books and speaking fees from 2008 to now, they’ve at least tripled. When he and wife Calista do their “motivational” seminars filled with Newt’s losing B.S., ticket prices are much higher now. They’re “celebrities,” doncha know.

Democrats play the game, too. Jim Webb, Jesse Jackson, et al. In the 2008 election cycle, for instance, the Hillary Clinton campaign committee reported more than $3.1 million in mailing list rental income. “Opportunism” knows no political boundaries.

Another major reason to run even a guaranteed losing race is the pile of money left in campaign coffers when you lose. Now, you can’t put it in your pocket and walk off. Though that’s been tried. And you can’t use it to bail yourself out of trouble. Idaho’s Larry Craig can speak to that.

But you CAN distribute those dollars to the campaigns of “friends.” You can buy yourself some favors from individuals and organizations. You can pick up some I-O-U’s that may be very helpful down the line. Might even “buy” yourself a plum appointment at the public trough. Those leftover campaign bucks can open doors, curry favor or send a publically rejected, failed candidate off on a whole new “career.”

Our founding fathers - part time legislators all - never thought of turning our national political system into a cash cow. Their view was do the job and go home.” It took we greedy descendants to figure out how to use faux patriotism and prostitute the political process for our own nest feathering.

Damn. What a country!

History rolls on


With our attention riveted elsewhere, on the imbroglios of national politics, a remarkable development in the Middle-East is slipping past without raising any of the hullabaloo to which it deserves. An election is going on in Iran, with results that appear to be significant to the future prospects of world peace.

The government of Iran is a complex structure of civic processes tightly intertwined with religious infrastructures. The government exists in an arcane duality dictated not only by a constitution but also by the Quran, with everything subject to limitation and oversight to ensure compliance with the demands of Islam, and with all of it under the exclusive and absolute control an Ayatollah. It is abundantly clear that most of us have no idea how the various parts of Iran’s governing machinery are connected up or relate with one another or with the rest of the world.

Perhaps partly as a consequence of this lack – since by nature, we tend to dislike that which we do not understand – but apparently and mostly out of a desire to make the President look bad and denigrate the importance of the nuclear arms agreement negotiated on his watch, the campaign rhetoric from the pack of Republican candidates treats Iran with suspicion and disdain.

The country is considered an enemy, as though Mahmoud Ahmadinejad, the odd-ball hardliner from the past, was still the president, that the reform movement was non-existent or had made no progress, that the Ayatollah of today was of the same ilk as the Ayatollahs of yore, and that no changes had been made in any parts of the country since the hostage days of Presidents Carter and Reagan.

Despite the eyes of the rest of the world watching with aghast fascination, the nuclear arms agreement is dismissed as a huge mistake, the trade embargoes are praised for the misery they have caused, and it is repeated blatantly and often that the United States should have somehow managed to confiscate the Iranian assets embargoed in banks throughout the world. This representation of the Iranian situation by the Republican beseechers could not be more wrong.

In fact, dramatic changes have begun to occur within Iran. The visible change began with the unexpected election of the moderate Hassan Rouhani as president to replace Ahmadinejad in 2013. The nuclear arms agreement was largely possible because of Rouhani’s efforts in heading off opposition from the hardliners by stressing the importance to Iran of lessening the crippling economic sanctions, and in securing the Ayatollah’s agreement not to interfere. While Secretary Kerry pulled off a diplomatic coup in assembling the impossible coalition of allies that included Russia and China at the same table, all would have been for naught without Rouhani being receptive to the idea from the outset.

With this background, on last Friday the Iranians went to the polls to elect members to their 290 seat parliament and the 88 member “assembly of experts,” a council of clerics and religious leaders that plays a role in the selection of the successor to the Ayatollah. These bodies had been overwhelmingly in the hands of the principlists or hardliners. The election of 2016 was the first general election since the announcement of the nuclear arms agreement.

The results of the election are not final yet, but with a dramatic turnout in excess of 60% of the qualified electorate, it appears the results will be continued gains for the reform and moderate candidates in both the parliament and the assembly of experts. The principlist majority in parliament appears to have disappeared, and their hold on the assembly of experts lessened considerably. The election is being seen as a referendum on the nuclear deal as virtually every prominent critic of the nuclear pact was defeated.

The long range impact of this shift in power on foreign policy is still uncertain. The Ayatollah has made it clear to President Rouhani that he does not foresee a relaxation of tensions with the United States. Nevertheless, with the influence of the hardliners beginning to wane, President Rouhani and his moderate allies within Iran are working for more open communications with the West. While it is way too early to count on anything, and no one is suggesting that the United States drop its guard for an instant, the developments are unmistakably a positive sign of at least the potential for better relations between Iran and the United States in the future.

With all this properly in context, is it too much to ask of our candidates for election that they shut the bleep up about Iran? Or if they have to talk, that they explain the situation in Iran as it actually exists, instead of making stuff up as they strive to make Obama look bad? There was a time, in my lifetime, where both parties subscribed to the principle that when trouble was brewing, we had one President at a time and all politics stopped at the water’s edge. If there was an international crisis afoot, then no matter what the individual or even partisan beliefs might be, as to the world, we stood solidly behind the words and actions of the current President.

Would that we could return to that day, instead of having to tolerate the intemperate, hyperbolic and plainly fallacious remarks of Trump, Cruz and Rubio as they shoot off their collective mouths striving to climb over each other on a subject they know nothing about.

First take/Idaho primary

Very hard to know who will wind up winning the Idaho Republican primary. In a recent rundown through comments by Idaho elected officials, an Idaho Statesman piece yielded little definitive other than that no Republican presidential candidate was likely to hit the 50% mark, which is where the contest would become winner-take-all.

On the flip side, I'd be surprised to see Donald Trump, Ted Cruz or Marco Rubio score as low as the single digits. (John Kasich, notwithstanding an endorsement from the governor, might, though he could hit in the teens too.) The weight of opinion seemed to lean a bit in Trump's direction, and that's a credible outcome. So too a good showing by Cruz, with his support from small organizations (his stopover in Coeur d'Alene was an indicator of that) or Rubio (who may do well in the LDS community).

But for the moment, Idaho ranks as a little more uncertain in its outcome than some of the other primary states we've seen. - rs