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Posts published in “McKee”

Good guys with guns

mckee

Let’s explore the urban myth that the gun lobby and their followers bring up every time there is a mass shooting. The one that says the best answer to a bad guy with a gun is a good guy with a gun. Donald Trump is advocating this as his answer to the Orlando shooting. He pumps up his crowd by suggesting that things would have been different if someone in that crowd had a gun, and had used it on the shooter. Trump points his finger at his forehead and pulls the imaginary trigger. “Boom!” he suggests, “end of problem,” to the sound of loud cheers and applause from his crowd.

Balderdash. Anyone truly familiar with guns, with crowds, and with what happens when somebody starts shooting should be able to easily figure out with a few minutes logical concentration that the myth is just that and that Trump’s solution is utter nonsense.

Let’s suppose that out of the crowd of 300 or so that might have been in that nightclub that there were 10 individuals who were armed. What would have been the expected result? First of all, when the bad guy fired the first shot, there would have been pandemonium. A goodly number would dive for cover or head for the exit, a fair number would rear up and look around to see what was happening, and the rest would mill around in confusion. The point is that the entire room would be immediately filled with unpredictable movement in all directions.

Into this setting, we introduce the 10 vigilantes. They do not know one another, have never practiced or trained together, and are spread generally throughout the club. (In real life, the cops practice these scenarios repeatedly, but in our situation, the 10 vigilantes are on their own.) They all pull out their guns. Now there are 11 people in the club with guns out.

You and I know that only one of these is the bad guy and that all the rest are good guys, but no one else knows this. What is worse, the 10 do not know anything of each other. For all any one of them knows, anyone else with a gun is a potential bad guy. Somebody sees somebody across the room with a gun. People are milling around back and forth, and nobody knows what anyone else is doing. Finally, this is all happening in a bar where the booze has been flowing steadily all evening, including, probably, to our stalwart vigilantes. What could possibly go wrong?

Let’s make it worse; two or three of the good guys see the bad guy shooting, and they start returning fire. Now the other gunmen can see and hear gunfire from the three good guys, but they don’t know who’s who yet, because they don’t know where the bad guy is, and they can’t tell where all the shots are coming from. If one starts shooting now, there is a good chance it will be against one of the other good guys. And the clear chances are that if anybody else starts shooting in this melee, everybody is going to start shooting. Bullets are going to be flying everywhere, and the casualty count is going up, not down.

Yes but, someone might argue, one of the good guys might shoot the bad guy and that would take the assault rifle out – which would be a big improvement, right?

Wrong. Accuracy with a pistol is an inordinately difficult task. It takes a ton of training, hours of dry fire practice, and hours more of live fire practice on a range to become even moderately accurate with a pistol. Maybe on a well-lit shooting range, with plenty of time and no distractions, a person with some training could learn to put a round or two into the target killing zone. But in all likelihood, regardless of how accurate the vigilante is on the range, the probability of that accuracy carrying over to a crowded nightclub, or dark theater, or school gymnasium, or crowded shopping mall, with all the yelling and movement and commotion that would be going on in a real life situation, is very, very slim. Once the shooting starts, the odds of anyone being able to hit whoever is actually being aimed at – unless the shooter is right up on top of his target – is going to be very, very slim.

I recall a police shootout several years ago where the cops fired close to 100 rounds at the bad guy without hitting a thing. The perp finally threw his gun out and surrendered. When I was in the military 50 years ago, I qualified on every weapon available from the M-1 rifle through all manner of automatic fire machine guns to the 105 mm main tank gun – except for the standard issue Army 45 caliber pistol, with which I could not hit a barn door at anything over ten paces. Nor could anyone else who went through the orientation with me. The point here is that to pick off the gunman from any distance with any degree of predictability would take someone who is not only an expert shot with a pistol but also is accustomed to shooting in high stress and confusing situations, where the target is shooting back.

Then the cops show up. Doesn’t take long, and they show up in force with swat teams deployed. It is still pandemonium inside, of course, with everybody yelling, the shooter still blasting away from some corner somewhere, and 10 guys with guns milling around, firing off whenever they think they have a shot. It’s dark, the cops are in swat gear. Everybody starts yelling to drop their weapons and come out with hands up. How could this be expected to turn out? Are all 10 good guys going to immediately drop their guns, stand up and walk out with their hands up? Oh yeah? Who’s going to be first? The plain fact is that it will take the police much longer to get control of the situation with a room full of vigilantes as it would if the bad guy shooter was the only one with a weapon.

One last exercise: pretend you are one of those good guys with a gun. You have been looking for the bad guy and the cops are finally on the scene. You don’t know if they have the bad guy yet or not. You move down a hall and around a corner and run into this.

Take a look at the picture: Tell me fast, what do you do? (1) Shoot the guy with the gun; (2) drop your gun before the guy shoots you; or (3) run?

Doesn’t matter what you say – all answers have an equal probability of being wrong. If you pick (1) and shoot the guy with the gun, its wrong – he was a sheriff’s deputy in swat gear, and he had the real shooter under arrest. When you shoot him, the kid grabs the sheriff’s gun and shoots you.

If you pick (2) and drop your gun, it’s wrong – the guy is actually the shooter and the other guy was the deputy sheriff. As soon as you drop your gun, the bad guy shoots you.

And if you pick (3) and run, its wrong – the guy with the gun is one of the other “good” guys just helping some kid to safety, and when you run with your gun in hand, he spooks and shoots you.

How can anyone in their right mind think that setting up a situation where some number of complete strangers would be expected to pull out handguns in a room full of other complete strangers and, not knowing each other or anything of the shooter, and never having practiced an operation like this before, and without hours and hours of practice necessary to shoot straight under pressure, manage pull off the miracle by taking out the bad guy without injuring themselves or anyone else?

Does anyone still maintain that the best answer to a bad guy with a gun is a good guy with a gun?

Who’s on First

mckee

The national campaigns are careening totally out of control. We have jumped down the rabbit hole and have no idea of where the damn rabbit went. We don’t know who’s driving, where we’re going, what to expect from either campaign, or how this will all play out through the conventions and into the fall. It may seem like November is still a long way off, but in real time it is just around the corner. Nobody in the entire panoply of cognoscenti has even a faint clue of what the landscape is going to look like as that critical day in November approaches.

On the Republican side, the media has become a circus, mesmerized by Trump to the point of the absurd. He has been handed the lead of every news cycle in recent memory. Any event of his campaign is now treated as though it were a national disaster, meaning wall to wall coverage of little more than the grass growing around the venues of the day, with blank time filled with interviews of ticket-takers and janitorial staff. Whenever Trump is cornered into a one-on-one, little information beyond what he wants to release comes out, for Trump is a master of the spin and pivot. Press interviews of The Donald have become reminiscent of Abbott and Costello’s classic “Who’s on first?” only for keeps and in real time. Trump is obviously having a ball, and the media, trying to keep within traditional campaign rules, is left collectively chasing its tail.

Although the party stalwarts are grudgingly beginning to fall in line, Donald is not making it easy. He has not made peace with the Speaker yet, and has announced that he may not even try. He continues to lob verbal hand grenades at anyone he perceives to have slighted him in any fashion – no matter who or from which party. His recent target for a totally unnecessary verbal slam-down was the governor of New Mexico, who is not only a popular Republican in a potentially purple state, but also (a) a woman, (b) Hispanic and (c) the national chairman of the Republican Governors Association.

On the issues, it is becoming increasingly obvious that Trump is not a Conservative and probably not a Republican. The purists among the R’s are appalled at all the inconsistencies and U-turns, as Trump is beginning to walk back from deeply held conservative tenets in foreign policy, national security, economics and even social issues. On policy issues he is, in a word, whatever the current trend at the present locale appears to want him to be – for that moment – if it will get him elected. All of this would, in other times, result in a mass exodus from the Republican party – except for the deep seated and unshakable fact that overwhelmingly, most Republicans so despise Hillary Clinton, that they would vote for the devil himself before they would be caught crossing over.

On the other side, the Democrats are not doing it that much better. The D’s are stuck between a proverbial Mad Hatter and the Queen of Hearts, as they try to figure out whether the interloper is something out of Lewis Carroll or the Brothers Grimm. Was Bernie Sanders sent by the good fairy to rescue the kingdom from the evil red queen, or is he just a Kafkaesque crusader sent in to illustrate the futility of it all? No one has nailed an answer to this yet, and no one has been able to get Bernie to quit beating up Hillary while they try to figure it out.

Hillary Clinton has focused her sights on Trump and is trying to run on policy issues germane to the general election. Her efforts to concentrate on policy keep getting overridden by process issues that won’t die. The current flap is the State Department Inspector General’s report that no one has actually read but everyone cites with hand-wringing concern. It is casting a low pall over Hillary’s campaign at the moment, even though in reality there is nothing new there. Everything contained in the IG report has been out in the open and examined to death. But despite the best efforts of the Clinton campaign to bury the issue, it keeps recurring.

What would undoubtedly be worse is for the FBI report to recommend prosecution. This report could pop out at any time, or could remain hanging until after the election. While opinions abound from all sides over what will be in it, those who appear to be more objective believe the expected FBI report will not find criminal involvement. If such were likely, letters of caution would already be flying around and the investigatory interviews would be far more circumspect. Nevertheless, until the shoe drops, the specter of a criminal prosecution continues to glow and give off heat, fanning the fervor of the entire line-up at Fox News. The issue will not die.

In times past, even the hint of such a mess would have disqualified the individual at the very get-go. It speaks volumes to the resilience of Secretary Clinton’s strength as a candidate that she has continued to weather all of this nonsense through everything thrown at her up to now, and has still sustained her position as the leading and now probable Democratic candidate. On the other hand, it also speaks volumes about how deep into the barrel the Democrats found themselves willing to reach in their search for suitable candidates this term.

Senator Sanders is now fighting a battle that is statistically impossible for him to win. Of the handful of states left, only California is of any size in total delegate count. The polls indicate that at best, it may wind up a tie. But Clinton does not need to win California to win the nomination. Even if she gets the lesser end of the election in California, unless she goes all the way to zero she will still receive enough delegates to push her total of committed delegate count over the needed line for the nomination at the convention.

In every situation in the past, the traditional step has been for the one with no realistic chance to withdraw and deliver up his support to the leader. Sanders must be gambling either upon the release of an FBI report recommending prosecution against Clinton, or upon some sort of mutiny among the uncommitted super delegates. But even in such event, from a practical electability standpoint, the enigma facing the Democrats would still be which would be worse – the patina of socialism swirling over the non-Democrat, or one more anchor added to the thirty years’ worth of anchors the leader is already dragging about?

It might appear that the predicted result will be for Clinton to succeed at the convention, albeit with a few more scars administered by Sanders and his minions. Clinton stands to beat Trump in most of the polls. But it will be close. The negative numbers might influence the final result, but both sets of negative results virtually cancel each other out. Because of the history of everybody’s predictions up to now, nobody is predicting anything on the relative negative poll standings. It is going to be an un-callable crap shoot from here on out.

On a deeper note, what cries out for further comment and analysis is that both parties managed to bring forward seriously flawed candidates for what should have been posts demanding the best of their best. We have never seen anything like the debacle that faces the electorate during this term.

How did it happen that we had to tolerate a bus load of unqualified prospects this term? How did it happen that so few answered the call to challenge Mrs. Clinton? Is it enough that every person who wants can declare themselves to be candidates, fully entitled to seats on the stage for as long as they want to remain? Would different processes at the outset have produced better candidates, and avoided the slow motion train wrecks we are viewing today?

No matter what happens, these issues need to be examined by both parties with steps taken if necessary to ensure that this nightmare is not repeated.

Strong elixir

mckee

Watching Donald Trump try to evade Chuck Todd’s cross examination on the recent Sunday’s “Meet the Press” supports the growing conclusion that the presumptive Republican pretender is nothing more than an unreconstructed huckster of snake oil in modern clothes, totally without portfolio or credential, whose sole ambition is really to become the richest man in the world.

Facts are immaterial, truth is relative, policy is fluid, and consistency has four syllables. Words are but tools to convince the listener that Trump’s snake oil will cure anything, anywhere, anytime, and for anybody. He will say anything that he thinks will operate to enhance his position.

But wait – there is not a single detail in there, anywhere to be found. The labels on the bottles are all blank, the handouts are unintelligible, and his web site makes no sense. No matter how hard one looks, nothing adds up. This huge hole in the structure will not work for the general election. Trump cannot continue this charade, and he will be found out. Won’t he?

Perhaps not. To the huckster, the lack of detail does not matter a whit; the actual contents of the elixir he is peddling is completely irrelevant. It is the illusion he is pushing, not the reality. If any direct question is posed that would penetrate to the actual core of any of his declarations, Trump’s standard tactic is to (a) change the subject, (b) immediately pivot the response to some other grandiose hyperbolic declaration, or (c) attack the motives, integrity or fairness of the inquirer. More recently, and especially with foreign policy topics, Trump has been admitting that he is providing no details and blatantly says he has no intention of doing so. He suggests that these details are part of the problem; that we should be less transparent in our dealings with foreign nations. He claims that we should keep our enemies and allies, and now apparently even ourselves, guessing about future intentions.

Up to now, all of these tactics have been more or less accepted without serious challenge. With multiple contenders in the mix, there simply was not time available to chase down all the inconsistencies, vagaries, omissions and just plain hogwash contained in the various contenders’ campaign materials. However, now that the campaign is moving into general election territory, all his may change.

The recent “Meet the Press” is an indication that things might not be so easy any more. Now that the focus of attention is on the general election, the press is going to expect much more than simple bumper-sticker sound bites. For example, when Trump contradicted a previously stated position on domestic policy, Chuck Todd immediately jumped him on it. Before Todd let up, Trump tried to change the subject twice, flip-flopped on his original answer, and then simply denied what he had originally said. It was typical of the double-talk and legerdemain that used to work where the opposition was a stringer in a press gaggle. This time, with Todd’s persistence, it left Trump looking foolish and provided grist for the media mill that was still grinding away on on Monday.

Everyone maintains that Trump will have to turn towards the center once the campaign shifts to general election mode, but his early machinations seemed to imply that he has no intentions of doing so. His personal slurs against the Clinton’s come on the heels of his promise to keep the campaign on policy unless Hillary attacks first. His battle with Speaker Ryan makes no sense if he is willing to work with the establishment Republicans in formulating policy. Picking a stepped-up fight with Elizabeth Warren is both unnecessary and just plain dumb politics. Warren isn’t running for anything, and has nothing to risk by taking Trump on full tilt. Trump has neither time nor capacity to take on a gutter fight with Warren; such is decidedly un-presidential, with no upside to gain from the fray. Trump is now only one week into the new general election mode, and he already has three open, un-presidential squabbles raging on gutter issues not relating to policy, with one being inside his own party.

An intriguing thought comes to mind. All of this may not matter at all. All good trial lawyers know the laws of primacy and recency in the art of persuasion. The law of primacy says that the proposition presented first will hold greater influence over a proposition presented later, regardless of merit or who says it. The law of recency says that the last proposition presented is more important that any propositions presented earlier, again, regardless of merit or who says it. These laws do not say anything about merit, fairness or truth. These so-called rules of persuasion simply talk about being first, and last, and loudest.

It occurred to me that Trump has been demonstrating his understanding of these rules in spades, over and over again. When he introduces a declaration against an opponent, it is a barrage. It will have any number of parts, some supported, some not, with no differentiation. When the reply comes, it will invariably hit only one or two of the key elements of the declaration. From the standpoint of logic, or from the actual evidence of what is true and important, defeating the key issues may appear to be sufficient to demonstrate the weakness of the entire declaration; but from the standpoint of the laws of primacy, addressing only the key issues leaves all of the unmet assertions still on the table.

This means from the sheer number of issues, Trump may be ahead, and he will then reiterate his declaration, ignoring the reply and referring to the entirety of his statement in shorthand versions. The reiterations come as often as necessary to assure Trump that he has made the first and last declaration on the topic, accomplished with the most frequency, thereby satisfying all the laws of primacy and recency.

The discerning examiners may not be fooled; they will have paid attention to the actual evidence, to the key issues, and to the proper weight to be attached, and will have reached their conclusions on actual policy, realistic assessment of resources, and feasible reaction. On virtually every one of Trump’s issues presented thus far, he will lose this kind of analysis resoundingly.

But the passing listeners among us who are just now beginning to look into the events of the day may well register only the volume of issues, the frequency of iterations, and the primacy and recency of the arguments advanced. To these ears, it may not matter that the arguments are not consistent, or that the facts are exaggerated, or that truth seems elusive. All of this might be passed off as the natural expectation of politics.

The only consideration that persists over the rumble of the ongoing arguments is that Trump is first and last and loudest on these matters, which may lead the undiscerning listener to believe that Trump will refuse to accept things as they are; to accept the assertion that box needs shaking; and to believe Trump’s claim that he truly intends to shake the box.

If this is how it is going to happen, and if Hillary, or the Democrats, or the establishment Republicans, or the media, or someone, cannot convince the majority out there to look past the colorful canvas and stripped awnings and the cases of unmarked elixir stashed away, and recognize the imbedded fallacy of first, last and loudest, and see instead the real issues at stake – we very well may deserve what we get.

That huckster may just carry the day.

Tangling web

mckee

In his major policy speech last week, and when on the stump generally, Donald Trump continues to berate Obama about the trade imbalance, contending in a string of bumper-sticker declarations, without detail or explanation, that the manufacturing trade deficit is approaching $1 trillion a year, that this is result of terrible deals negotiated by political hacks of Obama, and that the United States is losing jobs to other countries on account of it.

He promises to bring in high powered negotiators to renegotiate everything to get better deals, to impose punitive tariffs to get the trade imbalance in line, and somehow to reach out and retrieve all the jobs that have been moved offshore.

Trump is completely misrepresenting the scope and nature of the problem, and deliberately overstating the consequences that may be expected from any of his proposed solutions. He is only looking at half the picture. When all of the picture is examined in perspective, it becomes clear that Trump’s entire argument on this point is pure, unadulterated nonsense, and he should know better.

Fundamental to understanding what is really going on is the recognition that nations do not trade with one another, individuals do. A trade deficit is not the product of one nation making a lopsided deal with another, it is the net sum of thousands if not millions of separate, individual deals made between individuals and businesses in the separate countries, each expressing their individual choices within the countries involved. Trump’s promise to bring expert negotiators in to renegotiate all the trade deals that make up the trade deficit is a good indication that he has no idea what he is talking about.

As any economists will explain, a trade deficit, standing alone, is not a bad thing – it is merely the economic indicator of an existing condition. A trade imbalance or deficit occurs when the dollars out to buy imports exceeds the dollars in to sell exports. To determine whether any such deficit is good or bad depends upon why the imbalance occurred. The United States has almost always maintained a trade imbalance; we are and have been since at least 1975 a net importer as a nation, and we largely benefit because of it.

The average American consumer benefits hugely from the importation of cheaper foreign goods. Where the fundamentals of the economy are strong, any shortage from the excess in dollars flowing out over reciprocal dollars flowing is absorbed by increased GDP and normal growth without resulting in abnormal inflationary pressures. Capital returning in the form of investments in the U.S. or acquisition of U.S. securities (i.e., Toyota and Honda, for example, in constructing automobile assembly plants here) is providing a capital surplus that directly benefits the U.S. economy, which on balance has led or will lead to increased opportunity throughout the local markets.

According to a series of Cato Institute studies published in 1998-99 and corroborated in a 2015 analysis by the Wall Street Journal, a burgeoning trade deficit is consistent with a healthy growing economy and indicates an economy ripe with investment opportunity and flush with consumer confidence. Trade deficits tend to be pro-cyclical, growing during expanding economies and shrinking during times of recession. By almost every measure, America’s economy has performed better in years in which the trade deficit rose compared to years when it shrank.

Trump’s wringing of hands over the burgeoning trade deficit is further indication that he is either trying to kick sand in everyone’s eyes or he does not understand the fundamental economics of international trade.

The trade imbalance is not causing domestic manufacturers to take their plants and jobs overseas. Improvements in technology in underdeveloped nations – particularly the increasing availability of reliable electric power – and improvements in communications and shipping alternatives have made it possible to duplicate quality manufacturing capacity in underdeveloped countries. For labor intensive manufacturing, this means that production can be accomplished in an underdeveloped country at significantly lower labor costs. The loss of labor intensive manufacturing from the United States to underdeveloped countries is becoming and will continue to be an economic certainty regardless of the status of the balance of trade. Further, and no matter what Trump promises, these manufacturing processes are not going to return to the United States until further technological improvements here, such as robots and automation, eliminate the labor cost consideration.

Imposition of tariffs to dampen the benefit of cheaper labor overseas may appear to solve the problem of jobs being outsourced overseas, but it is only of short term relevance. Any tariffs that are imposed will be added to the price and be passed to the consumer, which will cause a decline in the demand for the foreign goods. The resultant increased price on the goods from foreign competition may permit the local manufacturer to continue to compete price-wise in the domestic market for a while. But the lower cost alternative will continue exist in the international markets, preventing the domestic producer from competing world-wide.

In very short order, the impact of imposing tariffs on one segment of the import market will reduce the amount of returning capital – reducing imports will lower the flow of dollars out which then become available to finance reciprocal trade, or capital investments, or acquisition of securities. All elements of the market will eventually be dampened to some degree by the imposition of tariffs or other artificial restrictions on any one segment of the market.

The net effect may appear to save some production jobs in some areas, but this will come at the expense of higher prices to domestic consumers throughout the market, lower reciprocal trades in other areas of the market, and lessened availability of foreign investment capital. If the domestic manufacturer in the tariff market attempts to continue to manufacture goods at the higher labor costs of the United States, he will be unable to compete in foreign markets. Determining the actual net value of all these elements is an ongoing and extremely complicated process. Suffice to say that theoretically and by definition, it will eventually balance out exactly, as by definition the markets will always strive to achieve equilibrium.

The take away from all of this is that Trump is simply blowing smoke in his tirades and promises around the trade deficit, and what he can actually deliver in the way of increased jobs and balanced trade. Recognizing that this is an extremely technical subject it can all be summarized in a phrase that anyone can understand:

Either Trump is a fool or he thinks we are.

Preserve and protect

mckee

Idaho Senators Jim Risch and Mike Crapo are fine lawyers and considered to be a pretty good politicians, so they both should know better.

Usually, their instincts are spot on, but to the issue of judicial appointments to the Supreme Court, they are both dead wrong. If they feel obliged to march to the drumbeat set by Senator McConnell, they should just say so and take their medicine. But in trying to make up reasons that give credible justification for ignoring the President’s recommendation of Judge Merrick Garland to the Supreme Court, our good senators both come off looking foolish.

Federal judges are appointed for life. The life appointment is a key to the principle of judicial independence, which in turn is an essential ingredient of the tripartite system of checks and balances that is the hallmark of the constitutional government our forefathers designed over 200 years ago. The politicians can’t toss a judge out of office except for impeachable cause and they can’t alter his personal jurisdiction or lower his salary once appointed. The judiciary is not supposed to be subject to the demands of partisan politics, it is not to be influenced by the topical fads of the day, and it is expected to be aloof from the demagogic demands of the people. The judiciary is to take the longest view, without fear of retribution or reprisal.

Under the Constitution, the President is duty bound to appoint judges to fill current vacancies. The Senate is to advise and consent on those appointments. The Senate does not get to say who the President can appoint, nor does it get to say when he can appoint. All it can do is vote up or down on those he commends to the Senate for advice.

The Senate leadership is currently in Republican hands. Majority Leader McConnell has declared that the President should not attempt to make any Supreme Court appointments during the last year of his term, but that positions should remain vacant until the next President takes office in January of next year. Senator Grassley, chairman of the Judiciary committee, has declared that the committee will hold no hearings on the Presidential appointments this year. By assuming the power to tell the President that he may not make any appointments during the remainder of his term, the Senate has assumed a Constitutional power that is specifically reserved to the President. This is wrong, and our Senators knows it.

The Senators both say it wouldn’t matter because they intend to vote against Judge Garland anyway, if he ever does get through the Judiciary committee, because even though they have never met the man and have not talked with him, they do not like some opinion the judge wrote on gun rights. Again, our Senators should know better.

In all of history, the efforts to predict how a future judge might rule prior to their appointment to the bench based on the appointee’s views on specific topical issues of the day has proved to be largely a waste of time. The plain fact is that whether the appointee is of considerable prominence and experience or comes from relative obscurity, no one can predict with certainty how the individual will perform once appointed to the court.
When Oliver Wendell Holmes was appointed from relative obscurity 1902, he served for 30 years, becoming the most widely cited Supreme Court justice in history. When Felix Frankfurter, an Austrian immigrant, co-founder of the ACLU and personal adviser to FDR, was selected, he turned out to be a principle advocate of judicial restraint and a sharp opponent of judicial activism. William O. Douglass was a rude political hack with nothing particularly notable about his legal skills when appointed to the court in 1939. He stayed for 36 years and become the most prolific legal writer in history. When Hugo Black, the little known senator from Alabama, was appointed, there was outrage because of his one-time membership in the KKK. He served for 34 years, and turned out to be a champion of the Constitution and its Bill of Rights. Governor Earl Warren was a Republican, considered by all to be a “safe” appointment when President Eisenhower named him to be chief justice in 1953. No one predicted that in his 13 year term, the Warren Court would become known as the most transformative court in history, ushering in significant and dramatic reforms in many areas of law.

The point is that nothing in these men’s personal history before their appointment gave a clue as to the greatness that would follow once they assumed the high court bench – whether one now agrees with the decisions that resulted or not. What a prospective judge’s views on some current issue of the day are, or how he might have voted on a given case of the day is irrelevant. The appointment is to be for life, society’s times and attitudes will change, and the justices themselves will mature and evolve. Any opinion on a topical issue of the moment is of no true significance. What one really wants know is how will that potential justice approach the issues before the court as they come up? Not what his opinion might be, but how will he arrive at it?

Is he curious? Is she willing to explore new ideas? Is he interested in new things? Is the applicant open to listen on issues thought closed? Or is the applicant more aloof, cautious in the consideration of new ideas and new concepts, and content to leave things alone unless there are compelling reasons for investigation or inquiry?

Does the applicant have a sound understanding of the law? Will she give due consideration to stare decisis, recognizing the impact of cultural and societal changes but appreciating the value of consistency and historical precedence? Will he consider all evidence with an open mind, keeping perspective and maintaining balance? Will she practice judicial restraint? The answers to these questions are far more important than how the appointee might vote on some current hot button question of the day.

Our Senators should encourage Chairman Grassley to take his foot off the brake. Let the process work. Hold the hearings, present the President’s appointee to the committee, and let everyone take a good look. Leader McConnell should be asked to relent; schedule a vote and see what happens. The Senators’ prerogatives are to vote no when the vote comes, but they should do so only after full and fair consideration of all of the judge’s qualifications – not just the Litmus tests some right wing factions have demanded of them.

These men have taken an oath to preserve, protect and defend the entire Constitution – not just those parts that appeal to the right wing of the Republican Party.

Both should rethink their position on this issue and then do their job. And they should encourage their colleagues to do the same.

Eeny, meenie, minie . . .

mckee

We are now 15 years into the wars in Afghanistan with no end in sight. We stiff-arm Iran in order to embrace Saudi Arabia, which is suddenly causing problems. Inconsistencies abound as situations continue to stagger and wobble from worse to worse, with no clear paths to follow, and no favorable solutions in sight. All this illustrates with unmistakable clarity that choosing up sides in the Middle East has become really, really tricky.

Some of this is inherited from Bush, some is the result of Obama’s decisions, much is just the consequence of unfolding events and choices that appeared to be right at the time but are turning out badly today.

The cacophony of bumper-sticker quality criticism from the Republican candidates, and the equally abbreviated responses from their Democratic opponents, are of no real help in understanding the depth and breadth of the problems we are about to face. It is disingenuous to think that the solutions to the Middle East quagmire is to be found in any of the sound-bite size proclamations coming from either end of the current political spectrum.

As an example of the complications that exist, let us examine one strong pull of a single tangled thread of diplomacy all the way to the end. The beginning of the thread is a bill that Congress is considering to allow individual victims terrorist attacks to bring lawsuits for damages in federal courts against the foreign countries responsible for the attacks. It might appear to be a simple little issue.

Several groups of victims of 9/11 attack on the World Trade Center are attempting to seek damages from the nation which is believed to have been responsible for financing al Qaeda operations. Their efforts have been stymied, at least in part, because of a 1976 law that recognizes judicial immunity of most foreign nations from suit for money damages brought by private citizens in U.S. courts. So, a bill has been drafted and is pending in Congress that will carve-out a narrow exception from the general policy of sovereign immunity, and allow suits for damages where the defendant nation is directly culpable for a terrorist attack that actually occurs on United States soil. The bill has some healthy support; it is jointly authored and supported by a prominent list of senators from both parties, and has already cleared the Judiciary committee on a unanimous “do pass” vote.

A laudable objective, one might think; who could be opposed to this? Well, as it turns out, plenty. Pull the thread some more, and the main foreign opponent of the bill appears. Saudi Arabia is probably the principle target for such litigation, and it is up in arms over the prospects of this bill. It has announced that it will dump over $750 billion in U.S. treasuries and related securities if the bill passes and is signed, rather than risk impoundment by an American court.

Pull some more thread out, and we see that most economists doubt that Saudi Arabia would carry out such a threat, as it would de-stabilize the economies of the entire region and do proportionately more harm to Saudi Arabia than to the United States. Nevertheless, there is now unrest in the economic markets throughout the world waiting to see what happens to this little bill in the Senate.

As a consequence, the White House is weighing in with pressure on Congress to accommodate the Saudi objection and sidetrack the bill. Aside from offending our supposed chief ally in the region, and potentially wreaking havoc on the financial markets of the world, the administration also argues here that weakening the reciprocal sovereign immunity provisions of our laws would put the government at legal risk generally abroad if other nations retaliated with their own legislation. To start monkeying around with the reciprocal provisions of sovereign immunity, the argument goes, is to play with fire. Secretary Kerry told a Senate panel in February that for this reason, the pending bill would create a terrible precedent.

Viewed from a few steps back, we see that the thread of difficulty with Saudi Arabia over this bill is but the most recent of a long line of disagreements with the Saudi royal family. Also involved are the Saudi’s interference with White House attempts to improve relations with Iran, the Saudi’s objection to our participation in the nuclear arms negotiations with Iran, the White House concerns and objections to the manner in which the Saudi military is conducting its part of the fighting in Yemen, ongoing disagreements between the Pentagon and the Saudi military over the accounting and use of military resources being provided by the United States, and, quite recently, our aghast reaction to the ISIS style beheading of 47 individuals in Saudi Arabia, including a Shiite cleric whose only crime was his vocal disagreement with the Saudi royal family.

What may be of more strategic concern, while we appear to be accommodating the Saudi requests on one hand, we also appear to be ignoring the ongoing support and financing by the Saudi regime, or at least individuals within the Saudi regime, to the more extreme of the Wahhabis and Salafist factions Islam, both in Saudi Arabia and out. These extreme factions of Sunni ideology fueled al Qaeda in the past and appear to be at the base of ISIS in the present.

In the past, our dependence upon Saudi Arabian oil forced us to turn a blind eye to such inconsistencies. Our present increased production of petroleum from the shale fields of North America have all but eliminated this economic dependence, and there is now no reason to ignore such practices by a supposed ally. Nevertheless we continue to not question the Saudi actions here.

The White House is cautiously beginning to make overtures towards Iran, but much of what will be needed to warm relations between the countries will require Congressional approval.

Further, a significant problem to improving relations with Iran is the perpetually sour relations between Iran and Israel, and the strong insistence, both by Israel and by her supporters within the United States, that the United States stand fast behind Israel no matter what. At the present time, Congress appears to favor continuing relations with Saudi Arabia at the expense, if necessary, of relations with Iran.

Western Europe, on the other hand, appears to be beginning to swing toward Iran. The apparent belief is that Iran, not Saudi Arabia, will inevitably emerge as the stabilizing force in the region. Iran is clearly seen as the key to peace in Syria and Iraq and to the containment of ISIS within the Middle East. The European community is appalled at the recent executions, and at the insouciant attitude of the Saudis towards any improvements in the area of human rights. Unless there is another change in direction, we may find ourselves backing the wrong team – or at least a different team from that of the rest of the Western World.

Swinging around to even another view, the general consensus is that the Saudis do not want any reconciliations with Iran. They would prefer that Iran be derailed from any engagement with the West, and this includes throwing monkey wrenches into any effort to bring Iran into the peace effort in Syria. It is difficult to imagine a peace accord for Syria, for example, that would not involve cooperation between Iran and Saudi Arabia. Without their joint involvement, peace in Syria may be unattainable unless refereed by either Russia or the United States.

If that day comes, whoever lands the job as POTUS will be wound into a political pretzel trying to determine whether to accept Russian participation in the region, with Russian troops occupying Syria and the contested regions, or to tolerate the commitment of necessary U.S. forces to occupy the territory, and to oversee the tasks ourselves. This probably means that countries with mixed Sunni and Shiite populations – Syria and Yemen, where civil war is presently raging, and perhaps Bahrain, where there is a potentially explosive division between the religious factions – will continue to fall even further into chaos.

After pulling this one little thread to the end, the take away that jumps out is that there are no right answers on the horizon. No matter what is done, no matter who does it, and no matter which way it goes, every action we take from this point on is going to be wrong. Period.

How could it possibly get worse?

What shall we call them today?

mckee

There is not yet a definitive name for the main militant group drawing all of our attention in the Mid-east. The lack of an acceptable, universal label here is much worse than the petty disagreements over the spelling of “Qaddafi” or “al Qaeda” (here, The New York Times preferences) which troubled us somewhat in years past. How can we mount a serious campaign against an enemy if we don’t even know what to call it.

Most of the media, including The New York Times, and all of the candidates on both sides, usually say “ISIS,” short for “Islamic State of Iraq and Syria” or perhaps “Islamic State of Iraq and al Sham,” where “al Sham” refers to Damascus, the capitol and surrounding regions of Syria. While descriptive, there is no historical significance to the term ISIS. One feature in support of the term is that it appears generally accepted in all major publications to write the abbreviation without periods.

President Obama avoids the term “Islamic Terrorists,” for good reason, preferring the more generic term “radical jihadist” when he wants a generic reference that might apply throughout Islam. But that term is too broad to refer to the particular militant group battling for control in Syria. Then, Obama uses “ISIL,” short for “Islamic State of Iraq and The Levant.” “The Levant” is a historic or traditional name that originally referred to the entire belt of countries on the eastern seaboard of the Mediterranean, from Greece to Egypt. To a minority of academic declarants, “The Levant” is used to describe the French mandate over Syria and Lebanon. The French adaptation apparently fostered the use of the term in today’s circumstances, although it is relevant only to Syria and not Lebanon.

While the term ISIL has some history and tradition to support its use, it includes unacceptable inconsistencies which are inaccurate and misleading in today’s setting. Also, the term ISIL now brings an immediate political reaction depending upon whether one favors or opposes Obama’s policies.

Secretary Kerry, and some others, have begun referring the militant jihadist group as “al Daesh,” an acronym from the true Arabic name ad-Dawlah al-Islāmiyah fī 'l-ʿIrāq wa-sh-Shām, which is largely unpronounceable to the Western tongue. Abu al Baghdadi, the self-proclaimed caliph, and his followers accept the full name, but reportedly do not like the shortened acronym. Abu al Baghdadi calls his domain the “Islamic State,” or IS, a term or abbreviation that none of the Western allies have adopted.

While I personally prefer the historical panache of ISIL, even though not geographically accurate, I would lean towards “al Daesh” if it picks up steam and becomes generally accepted. At the present time, this is not happening, for the term, whenever used, continues to draw blank stares.

All this leaves me with The Old Gray Lady, and her unswerving insistence on ISIS with no periods. But then, all said, this is pretty good company.

Growing richer

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A guest opinion in a recent issue of The Idaho Statesman suggests that minimum wage laws are an anathema to a free market society, destined to result in economic ruin for us all. The article is a recitation of hard right theology dressed up to look like sound economic theory, but is really unadulterated poppycock.

First dose of balderdash is the claim that the higher the price of labor, the lower the demand for it will be. This phony theorem is advanced to support the argument that increasing the guaranteed minimum wage will cause a correlative decrease in employment. The contention is, in a word, nonsense. It comes from substituting labels and torturing the basic supply and demand curve, which does hold that where supply is fixed, the higher the price of goods, the lower the demand. However, when measuring the cost of labor, the supply and demand curve usually has no application.

Generally, the cost of labor is a made up of a combination of elements, starting with the fluidity of the labor pool combined with functions of scarcity and specialty, and overlaid with the options open to the individual worker. This means that where there are few laborers available to accomplish the tasks demanded, the cost goes up. This was demonstrated in the shale oil fields of the Midwest where pay rates skyrocketed when the fields were first opened with (relatively) few laborers in the area. As workers flocked to the oil fields, and as the pool of available workers grew, the pay rates normalized somewhat. Then, as the price of crude plummeted, and as some owners began taking shale wells off production, the demand for labor dropped precipitously. Unemployment arrived in some areas, and pay rates plummeted further. The point to take away here is that demand drives the cost of labor – not the other way around.

On the other hand, in established markets at the bottom of our economy, where the greatest sea of the unemployed are to be found – the supply of unskilled labor is plentiful and demand is not an element. Fluidity, scarcity and specialty are not involved. The job seekers at the bottom are seldom able to move to follow or seek out new opportunities. They do not possess qualifications or skills which would narrow the supply. The price of labor here gravitates to minimum levels established by tolerance among employers, not to levels arrived at by negotiations with employees. The owner needs a certain level of labor – to get his field harvested, for example, or to get his takeout joint staffed with hamburger flippers – which he can fill by simply paying whatever the “going rate” is. He need not pay more, for the supply of unskilled labor is ample, and if he offers to pay less, the worker can find equivalent work for the “going rate” elsewhere in the same area. At the bottom of the pile, the cost of labor is a limiting factor, not a deciding factor.

In the world we live in, and in the general case, the labor pool is more fixed than fluid and cannot react. One form of strengthening the position of a relatively fixed labor pool is organization – labor unions insert the element of scarcity into the formula and change the balance of power. Strong labor unions are probably the most significant factor in creating a middle class in the industrialized middle of our economy. In many states, right-to-work laws have been enacted limiting the effectiveness of unions to organize. In these states, the wage rates are usually considerably lower than in states with strong unions.

Without the ability of labor to relocate freely, or to organize into effective unions, and absent some form of regulation, the bottom wage could theoretically decline to a penny. If that became the going rate, the owner would be under no motivation to pay more. Overall scarcity will affect the labor pool, but not the individual worker’s need or desire for higher pay. In a scarce market, the worker would never be called upon to work for a penny because the guy across the street will pay a dime, or more, and so forth, until an equilibrium with the level of scarcity is reached.

In the world market, this allows owners to move production from the United States to other areas of the world, where the going rates for labor are indexed much lower than here. It has also resulted in owners relocating production facilities within the United States – away from the traditional industrial states with strong, well organized unions, for example, into states with right to work laws that favor management and offer opportunity to obtain labor at lesser rates.

But in the true unskilled, unqualified bottom rungs of our economy, there has to be regulation to avoid abuse and exploitation. Even Adam Smith recognized that the greed inherent to a true free market would require regulation for the protection of the masses. We have never had a true free market economy, and would not tolerate it if we ever did.

The second dose of blarney claimed by the far right is that imposition of a higher minimum wage will have a disastrous impact on employment. The notion that raising the minimum wage to a reasoned level would have any measurable impact upon employment in the economy is a blatant, pants-on-fire, bald faced, whopper. In all of the history of the federally mandated minimum wage, being since the Fair Labor Standards Act of 1938, or 78 years, there is no instance where the reasoned addition, imposition or increase of a minimum wage has had any measurable net effect on the overall economy generally, or upon net levels employment within the economy specifically.

In a landmark study in 1994, two economists compared the effect on employment in the restaurant industry following a 1992 modest increase in the New Jersey minimum wage. They concluded that the rise in the minimum wage had no impact upon employment. More recently, a 2013 Center for Economic and Policy Research (CEPR) review of multiple studies over a 10 to 12 year period since 2000 indicated that there was little or no employment response to the increases in the minimum wage that had occurred.

In a more specific study in 2014, the Congressional Budget Office (CBO) estimated that if the minimum wage was raised from $7.25 to $10.10 per hour, being an increase approximately to the poverty line, this might lead to a reduction of 500,000 entry-level jobs, for an impact on GNP of around $3.5 million. But the trade-off would be a substantial increase the income of over 16.5 million workers who were paid at or less than the bottom wage rate. If one assumes that the increase would directly increase consumer spending, the result would be an increase in GNP of something in the range of $48 million -- which would offset negative impact many times over.

Another CEPR study in 2014 found that job creation within the United States is faster within states that raised their minimum wage. The study observed that in 2014, the area with the highest minimum wage in the nation, Washington D.C., exceeded the national average for job growth in the United States.

The final dose of hogwash delivered from the teapot right is the contention that any increase in the minimum wage will be passed on directly to the consumer through increased prices. The hyperbole is that the lower cost family cafes will disappear into mechanized do-it-yourself places with only the upper crust establishments surviving. While increasing labor costs do put pressure on management, there is no certainty that the increased costs will necessarily result in increased prices. The high rates of profitability being experienced by the upper levels under present conditions would indicate that margins are more than sufficient to absorb some level of additional cost before price is necessarily affected.

Price is a function of demand, not cost – and if demand will not support an increased price, management will have to accommodate the effect of increased labor costs somewhere else. Better management practices is always a possibility, as is accepting lower profit margins. While marginal operations may fail, the blame is far more likely to be upon management practices than upon any modest rise of the minimum wage floor.

The other side of the whole argument is that the far right objection and continued blockage of any increase in the minimum wage regulation is a contributor to the stagnation the middle class that has sustained in our economy for close to 30 years. At present minimum wage level, the bottom levels of income are below the levels of poverty. This has resulted in welfare supplements like food stamps, Medicaid and direct aid to the working poor. This allows the upper levels of management and owners to enjoy a heightened profit margin at the expense of the taxpayer, which one would expect the right wing to violently oppose.

Our economy continues to grow at a steady clip; the higher brackets of individual earnings, at the entrepreneurial management and owner levels, have seen record increases. However, the middle classes and below have been flat-lined for the years. The result is a growing disparity between those upper range income levels and the levels of the middle class and below.

Most commentators of political science, economics, history and sociology who have been studying this phenomena believe it imperative that the growing income imbalance be aggressively addressed. A strong adjustment to the federally guaranteed minimum wage would be a key ingredient and a good beginning.

Oyez oyez!

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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.