Supreme Court's poorly reasoned "whistleblower" case

The decision of Garcetti v. Ceballos was issued today*, and proves once again how a bright line opinion can create more problems than it solves. Let's go through the basic facts, many of which are not mentioned in most analyses I've read on the web so far:

1. Ceballos is a lawyer in the Los Angeles (CA) District Attorneys' office. He serves as a warrant officer, who reviews warrants--and the challenges to warrants by defense attorneys representing persons accused of commiting crimes.

2. One day, Ceballos received a call from a defense attorney that a particular warrant for the defense attorney's client contained blatantly false information. The defense attorney told Ceballos a motion would be filed to supress the warrant. Ceballos researched the issue, consistent with his job, and prepared a memo to his superior that there were, in his view, blatant misstatements in the warrant--rendering the warrant, again, in his view, invalid.

3. An internal argument between Ceballos and his superiors at the DA's office ensured over whether to send the memo "as is" to the defense. A side note: Defense counsel in criminal cases are entitled to all evidence exculpating their clients. The supervisors at the DA's office forced Ceballos to remove his opinions and conclusions from the memo, but provide the factual basis for his opinions and conclusions to the defense counsel.

4. The defense counsel, upon receipt of the information, decided to call Ceballos at the hearing on the supression of the warrant. The trial court in the criminal case heard the evidence, including Ceballos' open, public testimony (but not his conclusions, which makes sense to me as a court, not a witness, make conclusions of law and fact--and let's not get into the hot topic of experts who testify to ultimate conclusions, shall we?).

5. At the end of the hearing the trial court found that, while the warrant contained errors, it was not enough to invalidate the warrant.

6. Ceballos then filed a civil service grievance after his supervisors started taking cases away from Ceballos and ultimately transfering him from a larger branch of the Los Angeles County court system (Pomona) to a small branch (El Monte).

7. Ceballos then spoke publicly at a Mexican-American Bar Association function about general issues of misconduct at the DA's office. This fact is important as to why we should not be so concerned over the holding in the Supreme Court majority opinion, but let's hold our thoughts on that for a moment, shall we?

8. Ceballos' grievance under civil service procedure was then denied, which means his next level of relief should have been to seek a writ of mandate to the court system in California, seeking relief for wrongful demotion or retaliation. Please note that California cases are pretty clear about this direct, though limited, relief these days, in case anyone is wondering.

9. Instead of going through a writ of mandate procedure, however, Ceballos decided to sue in federal district court. In that separate lawsuit, Ceballos claimed, via the 14th Amendment right of a citizen to receive due process from a State (in this case, CA), that his First Amendment right to free speech had been denied by his employer. His remedy? The same relief in his retaliation or wrongful demotion grievance.

10. The District Court dismissed his lawsuit. Then, the 9th Circuit Court of Appeals reinstated his lawsuit. Then, the US Supreme Court today, in a 5-4 opinion, decided to send the case back to the district court to see if there is sufficient evidence that the retaliation was the result of his speech to the Mexican-American Bar Association.
But admittedly, the Supreme Court is less than clear in why they are sending it back to the district court for further hearings.

The Supreme Court held that Ceballos' internal fight over the memo should remain internal because this was a job-dispute that should not rise to a constitutional (First Amendment) end run around an otherwise ordinary employment case. What I found significant is that the court, in the criminal case, heard the evidence from Ceballos and other evidence--yet still found the warrant valid. This is not like a teacher voicing a public citizen's concern over racism at a school who gets demoted or fired. While an employee may sue for retaliation after being mistaken about a complaint one made, that does not give the person the right to sue for First Amendment violations when one is mistaken.

The majority is correctly concerned about avoiding micromanagement of managerial discretion, which Justices Souter and Breyer admit, in their respective and different dissenting opinions, is a sound public policy that must be considered by a court before issuing a ruling in such matters. Such concern is also well settled in California employment law, where California courts have held managers should be given more discretion to discipline or even terminate employees who exercise the type of authority Ceballos had--in order to promote team work and camraderie among managers or people with high levels of discretion in the work place. See: Pugh v. See's Candies, Inc. (1988) 203 Cal. App. 3d 743, 752.

Overall, I disagree with the majority's reasoning, and agree with Breyer's dissent more than Souter's. I agree with the dissenters overall that the majority opinion was unnecessarily undermining the principles set forth in Pickering v. Board of Ed., 391 US 563, 568 (1968), which held that there must be a balance between the right of a public employee to comment on public matters and an public employers' right to control the policy within its departments.

The majority get lost in analyzing whether Ceballos was acting as a "citizen" or an "employee" in the "memo dispute" when the majority should have by-passed that conundrum. As Justice Souter's dissent stated, the majority's analysis gives Ceballos more rights if he went to the LA Times with his memo dispute than by going through official channels. The majority opinion tries to say the distinction of "citizen" vs. "employee" is not its foundation for its opinion, but it is hard to disagree with Souter on this. Yet, the majority's discussion of this distinction is reasonable, though not a sufficient foundation for a very good reason: Ceballos is suing as an employee and seeking remedies as an employee.

However, the majority decision remains suspect because Ceballos appears to be suffering at his work place whether he speaks publicly or privately: In the facts summarized above, Ceballos also said he was retaliated against for speaking as a citizen, at the Mexican-American Bar Association, about general issues of public concern. The majority of Supreme Court justices, therefore, could have easily said: "We are concerned with interfering with the management of the DA's office in LA, but the pattern of retaliation continued against Ceballos regardless of whether he went outside or inside the system. Thus, the memo and internal dispute are merely further evidence of the retaliation." This way, the Supreme Court could have avoided painting with too broad a brush--and could have allowed the district court another chance to balance the equities through the test previously set forth by the US Supreme Court in Pickering.

Breyer's dissent correctly understood that both the majority and Souter overshot their arguments in favor of their respective positions. However, Breyer could have made more clear his procedural point: What Ceballos is really seeking here is an extra shot at a wrongful demotion and retaliation case, after losing his grievance procedure and not appealing it through a writ of mandate (the usual method under California law for civil service employees). Instead, Ceballos filed a separate lawsuit against his employer using the "First Amendment" to pursue a wrongful demotion and retaliation action. The First Amendment is about speech, not employment rights (particularly with public employees who have civil service protections). However, as with most things in life, employment rights may spill over into the First Amendment--and vice versa. That is why Pickering's balancing test is so important to uphold and why broad brush flourishes about when someone is a citizen or an employee are counterproductive to a district court's effective sifting through the facts of a given case.

All three opinions (majority, Souter's and Breyer's) are handing the matter back to the district court. Why the majority didn't agree with Breyer's more narrow holding and why it didn't see that a new bright line of "citizen" vs. "employee" the Court was painting is obscuring rather than enlightening is something I don't understand. I am not that concerned at this point, however, because the majority opinion states in pertinent part:

"Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions....

"Second, JUSTICE SOUTER suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value...There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."

___

What does the above quote mean? Well, I think it means there is plenty of reason to think that subsequent decisions will be distinguishing this case on its limiting facts and that, over the years, it will be eventually tossed aside. In the meantime, it will do damage to some whistleblowers, though less than those critical of this decision may presently believe. The majority opinion is poorly argued, however, and creates more uncertainty than enlightenment in the law.

* The link is from the Official US Supreme Court web site. It won't remain there very long, however, as the link is to recent slip opinions of the Court.

ADDENDUM: I am, upon reflection, convinced the only reason Ceballos sued in the federal district court rather than seeking the writ of mandate is that the latter is a very limited remedy. The problem is really the California Supreme Court's rulings giving public employees less than full remedies for wrongful termination owing to public employees having unions and/or civil service protections. This is why hard facts make bad law more often than not. The hard fact of public employees not having full common law rights to challenge wrongful employer practices led to a stretch for a First Amendment-based employee rights case.

(Edited)

Federal Judges should reject free trips to hear corporate agendas

Steve at Troubled Times links to this article in the Washington Post about federal judges getting all expense paid trips to hear seminars paid for by those with a pro-coroprate bent.

Steve says this has got to violate judicial ethics, though he was not able to research further to determine if this is true. While Senator Leahy has introduced a new bill on this subject, called "The Fair and Independent Judiciary Act," I believe the current federal judicial code of conduct is sufficient to say the judges who have taken these expense paid trips have likely violated this conduct code.

Canon 5 of the code of conduct states in pertinent part:

"Financial Activities.

(1) A judge should refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or other persons likely to come before the court on which the judge serves.

...

(4) A judge should not solicit or accept anything of value from anyone seeking official action from or doing business with the court or other entity served by the judge, or from anyone whose interests may be substantially affected by the performance or nonperformance of official duties; except that a judge may accept a gift as permitted by the Judicial Conference gift regulations."

The commentary to the Canon 5 warn judges to carefully weigh free trips to groups that may be funded by those who would likely be parties before them:

Canon 5B(1). The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the judge's relationship with it. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.

...


Canon 5C. Canon 3 requires a judge to disqualify in any proceeding in which the judge has a financial interest, however small; Canon 5 requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of the judge's judicial duties; Canon 6 requires a judge to report all compensation received for activities outside the judicial office. A judge has the rights of an ordinary citizen with respect to financial affairs, except for limitations required to safeguard the proper performance of the judge's duties...

Canon 5C(4). Reimbursement or direct payment of travel expenses may be a gift and, if so, its acceptance is governed by Canons 5C(4) and (5). A judge or employee may receive as a gift travel expense reimbursement including the cost of transportation, lodging, and meals, for the judge and a relative incident to the judge's attendance at a bar-related function or at an activity devoted to the improvement of the law, the legal system, or the administration of justice."


This last italicized portion would normally be enough to give the judges the right to attend these seminars, but the first italicized language is designed to require judges to exercise care in choosing when to accept such a free trip.

What particularly concerns me is that federal judges make approximately $170,000 a year. They also receive generous benefits. Further, judges have little expenses compared to the many non-employee lawyers who don't make that much money--and those non-employee lawyers pay for rent, malpractice insurance, books or internet access, support staff. Plus, those lawyers have to pay for their own continuing education.* Is it really too much for judges to pay for seminars for the improvement of law or continuing education instead of receiving a free trip to the mountains or the beach to attend a corporate funded seminar (and deduct it from their taxes as would a lawyer who paid for such a seminar)?

* Disclosure alert: I am an employee at a relatively small law office who receives salary and benefits the way a judge would. I don't pay for rent, overhead and the owner of our law office reimburses us for continuing education seminars (though circumscribed and subject to prior approval). I should add, though, that the employment benefits the federal judges receive are superior to mine and most other employee lawyers in terms of medical insurance reimbursement, number of sick and vacation days, and pensions/401ks, etc. Plus, they can't get fired unless they are found to have been blatantly corrupt--and even then, they can still end up in Congress (Well, at least in Florida!).

(Edited)

Finally, a search warrant is used--and Republicans in Congress don't like it

A Congressman, a Democrat, who is obviously corrupt, has his office searched for clues in his impending arrest for corruption. The Justice Department, performing the search, gets a search warrant and does so with additional steps to attempt to limit the invasion of privacy of a congressman.

So why are Republicans in Congress up in arms? I say Republicans because notice, from this article, how muted Nancy Pelosi is in her response compared to Haestert.

Is this search of Democratic Congressman William Jefferson's office a violation of the separation of powers? When, oh when, can the Justice Department search a congressman's office if not when there is overwhelming evidence of corruption? Never? Orin Kerr, the right ward leaning libertarian who is now shaking his head at the silliness of Republican leaders in the Legislature as well as the Executive branch, doesn't see the constitutional violation. And in this instance, neither do I.

What should be equally obvious is this:

Republicans in the US Congress are outraged because this sets a precedent to search the offices of top Republicans in Congress for their own corruption.

Final comment: Am I concerned about this search? Yes, but with the same muted sense Pelosi expressed. With the current yahoos running the Executive branch, who knows when they'll decide to raid Russ Feingold's senate office and rummage through his private papers on issues of policy and strategy--and, to add constitutional injury to constitutional injury, without a warrant? Other than that, Haestert's professed outrage is without justification except to protect his own corruption from being exposed.

(Edited)

Gutless vs. Strong Democrats

Glenn Greenwald says what must be said about those Democrats on the Senate panel who voted for General Michael Hayden to be the next director of the CIA.

This sort of gutlessness is why, despite Dean being the Democratic National Committee chair, I don't like to give my money to the Democratic Party as a whole.

People who deserve our monetary and active support are Democrats such as Tim Ryan (D-Ohio), who shows us how a real Democratic Party office holder sounds.

Another particular Democrat, Al Gore, appears have gotten the message (finally!) as to how to be a real person who speaks from his heart about real policy challenges facing our nation and our planet.

Final comment: Lloyd Bensten died yesterday. Contrary to the outpouring of respect for the man, pardon my contrary words: For those Democratic Party regulars who think it is a bad idea for Ned Lamont to challenge an incumbent senator from his own party, please recall that Lloyd Bensten was put up by the right wing of the Democratic Party to take on the venerable and wonderfully brilliant--and honest--Ralph W. Yarborough in the 1970 US senate primary in Texas. Bensten, well financed, defeated Yarborough and went on to defeat the Worst President's Dad in the fall election for the Senate seat. Bensten, as a senator, consistently supported the interests of the gas and oil industries, earning the nickname "Loophole Lloyd", and often sold out or wilfully ignored the interests of working class families. Yeah, Bensten got off a clever line against a doofus like Dan Quayle in 1988, but really, how much did Bensten himself understand the promise of Jack Kennedy? Bensten was, truth be told, a living symbol for why working class families began to abandon the Democratic Party in the 1970s and 1980s. So Lloyd, rest in peace. But we're still trying to pick up the pieces of the New Deal coalition you helped to smash. The Lamont campaign is simply one step in that rebuilding process.

PS: Ralph Yarborough plays a pivotal role in my alt. history novel about RFK. People will learn more about Yarborough in my novel than just about anywhere else. Our nation misses folks like Ralph Yarborough more than they'll ever know.

(Edited)

McGovern shows why he deserved to lose in 1972

This op-ed by George McGovern is a perfect example of why and how the Republican Party was able to peel away working class support from the Democratic Party.

It never occurs to former Senator McGovern that the lack of tariffs on foreign goods made with exploited labor was a major fact that contributed to the rise of Wal-Mart. McGovern never bothers to wonder why it is that Wal-Mart actively supports the movement of manufacturing jobs to China in order to maintain its not-so-always low prices. There was nothing fundamentally wrong with the US economy, for example, during the 1940s through the early 1970s, where workers made more money per hour than they do today and CEOs pay was far closer to their workers' pay.

McGovern's article shows the continued failure of current and former Democratic Party leaders to understand why the NAFTA and WTO are so horribly structured: Those two treaties codified the very trends undermining labor and environmental protection within the growing international economy.

My Dad often says, "But, son, the NAFTA is only one issue! You sound like a pro-life Republican when you rant about the one issue of NAFTA." My response, which my Dad really still doesn't get, is this: The NAFTA cuts across most economic issues and is vital to understanding how our nation's government can do anything for working class Americans. Nations that follow tariff policies designed to increase the opportunity for their citizens to buy what they make and make what they buy--and to diversify those nations' manufacturing output--are more successful than one crop economies.

This was true, even within the 19th Century US; for it explains how the North prevailed against the South in the US Civil War (1861-1865). The North had a diversified manufacturing economy that allowed for more people to be more gainfully employed than the economy of King Cotton in the South. Despite better generals and military people in the South's military, the South lost because the North was stronger from an economic standpoint in being able to sustain itself during the Civil War and had more people to throw at the Southern military.

Today, one need only compare the economic policies of South Korea to Saudi Arabia to see the point I am making. Or, to take a closer example, South Korea to Honduras or Peru, with those latter two countries having disasterously followed the advice of the IMF, World Bank--and this new George McGovern.

McGovern needs a lesson from Alexander Hamilton, with some help from John Quincy Adams to Eugene Debs to Amartya Sen. What each of these seemingly disparate-minded people had in common was they knew how to grow a just and equitably based nation and how to sustain such a nation. McGovern should crawl back under whatever rock he was under.

(Edited)

Dixie Chicks: When the Rubber hits the Soul

I'm listening to the Dixie Chicks CD here.

And as I do, the music feels beyond any particular country genre and sounds like...like...then it hit me: This album has the sensibility of a band hitting its stride and yet transitioning, like the Beatles did with Rubber Soul. You can hear it in the Dixie album's crisp production from Ric Rubin, who produced the breakthrough album for System of a Down, "Toxicity." You can hear it in the melodies--melodies that meld British and American folk music (and tell me "Bitter End" doesn't remind you of "Norwegian Wood") while maintaining spiritual ties to Patsy Cline. The songs are also very mature in their phrasing and lyrics, something that will likely dampen the air time on commerical radio it otherwise richly deserves.

Let's be clear, however, lest we overpraise the album. On a scale representing most so-called "popular music" albums over the past forty years, this album, overall, is, in my view, solidly above the Eagles' "Hotel California" level, which level should be quite high enough for most people.*

Bottom line: Buy this CD on its merits. And, if you can, buy it in a bricks and mortar building, not online. Be confident and let the cashier know you're buying it because these are very serious and talented young ladies who have created a great album...and who also don't take shit from bullies.


* We progressive rock fans, of course, ahem, often disagree with most people (who don't listen to music quite so obsessively) as to how much we should praise any album by the Eagles, Jackson Browne, and others of that particular style.

(Edited)

Book reviews for a Sunday

The Washington Post Book World is on fire today. Great reviews of varied and interesting books, including children's books. The adult ones of interest to me included:

1. A biography of a writer from the so-called Harlem Renaissance period, Ella Larsen. The review explains the pain of racism and those blacks who were "almost" white. I keep waiting for someone to write a biography of George Schuyler, who wrote one of the most amazing and brilliantly written American novels of the 20th Century, "Black No More" (1931). For those also interested in the 20th Century's "color line" as applied to the USA, I heartily recommend Sinclair Lewis' "Kingsblood Royal" (1947), which has been re-released with a very favorable introduction by a current black writer, Charles Johnson.

2. A biography of Curt Flood, who helped break down the odious "reserve clause" used against baseball players. The biographer and the reviewer correctly believe Flood is almost as important Jackie Robinson. The reviewer implies our society's still lingering racism may be to blame for Flood not being better known. This is wrong in my view because the one player who finally succeeed in killing the reserve clause altogether in 1975 was a white player, pitcher Andy Messersmith. The reviewer does not mention Messersmith's name, while noting the arbitration proceeding Messersmith instituted that led to the voiding of the clause. The bottom line though is that baseball players, and even players in other professional sports in America, should pay annual homage to both Flood and Messsersmith. For without Messersmith and Flood, the pay scales would be decidedly low and the owners would have still pocketed most of the profits in any event.

3. A book about the now infamous US Tiger Forces in the late 1960s in Vietnam, and how brutality often comes out of frustration and fear. For those who are surprised about the latest atrocity committed by US soldiers in Iraq, this book should show why it is no surprise. The book reviewer, the legendary Vietnam War reporter, Stanley Karnow, also takes pain to remind us that most American soldiers don't commit atrocities--but when multiple atrocities are happening, there is a context.

4. Here is a helpful, but not quite insightful enough review of an important book trashing aid efforts over the past 50 years. Reviewer David Ignatius fails to grasp what should be the main criticism of William Easterly's "White Man's Burden": It's not that aid is by itself bad. It is that the World Bank and International Monetary Fund (IMF) disasterously told formerly colonized nations to start one crop economies and borrow with no plan for diversification and true internal development. The book and now organization "50 Years is Enough" should be consulted and read concurrent with (or perhaps instead of) Easterly's book. Easterly's book is important, however, because it exposes, from an elite, insider's perspective, the horrid policies of the IMF and World Bank, including those institutions' disasterous "shock therapy" administered to Russia and its surrounding nations during the 1990s. Easterly also begins to understand that those nations, such as South Korea and Taiwan, which followed what our elites derisively call "protectionist" policies developed far better than those nations, such as many in Latin America, following the nostrums and endless borrowing from the World Bank and IMF. However, Easterly has no business offering cheap shots against Bono for the failure of most nations under the IMF/World Bank tutelage to develop. That's like blaming the Vietnam War on Jane Fonda, which I hope readers of this blog would agree is terribly and maliciously wrong.

(Edited)

PS: Re: George Schuyler: Alicia Keys is going to play Schuyler's daughter, Phillippa, in a film version of Phillippa's salutary and tragic life. Phillippa was a pianist of some fame who was killed in a plane crash in 1967 in Southeast Asia. Phillippa often went to Vietnam during the 1960s as...get this...a war correspondent. Amazing, no? She was, I must admit, a right winger as her father had become by the 1960s. The idea of a film of Phillippa's life sounds great. Perhaps a bio pic of father George Schuyler would then finally be made.

Let my country awake!

A little inspiration for the weekend and beyond, from Rabindranath Tagore (1861-1941), a wonderful poet, writer, musician, philosopher and activist from India, in his brilliant poem, "Gitanjali," or, as known by its English title, "Let my country awake":

"Where the mind is without fear and the head is held high;

Where knowledge is free;

Where the world has not been broken up into fragments by narrow domestic walls;

Where words come out from the depth of truth;

Where tireless striving stretches its arms towards perfection;

Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit;

Where the mind is led forward by thee into ever-widening thought and action---

Into that heaven of freedom, my Father, let my country awake."

Here is a beautifully written biography of Tagore, on the Nobel Prize web site, by one of the few brilliant economists, Amartya Sen.

Movie star bonus trivia: Martin Sheen often reads this poem at political rallies. If you don't like Mr. Sheen, please don't let that diminish the power and spirit of this poem. I happen to like Sheen, but that's no surprise, is it?

Ned Lamont gets to take on Boltin' Joe Lieberman

Tonight, Ned Lamont, a true blue Democrat (in the best sense of that phrase) needed 15% of the vote of delegates to the Connecticut Democratic Party's convention to earn the right to challenge Joe Lieberman in a primary race for the Senate seat Lieberman holds.

Lamont received 33% of the vote.

This is a fairly significant earthquake considering that Lieberman had a strong incumbent's advantage at a political party convention Lieberman has owned for over a decade. I bet there are more than a few who voted for Lieberman who also said, "OK, I'll vote for you, Joe, in the delegate count. But in the primary election, you'll have to earn my vote...if you can."

I just gave a some money to Lamont's campaign. Again, I am not affiliated with the campaign and, living in CA, can't vote for Lamont. However, I believe the stakes are high for Democrats to elect people who truly stand for regular folks and who do not support unnecessary and ridiculous wars.

Send Lieberman home and send Lamont to DC. If Lamont wins this primary, he'll be victorious in Connecticut even if Joe bolts from the Democrats to run as an independent. If Lieberman does bolt the Democratic Party, the name that will haunt him will be "boltin' Joe."

(Edited)

Religious and secular left: Move beyond respect to coalesence

Dan Wakefield, a long time NY based writer, was recently interviewed in the Nation regarding his new book, The Hijacking of Jesus (Nation Books, 2006). This enlightening interview highlights his book's basic points. This paragraph of the interview was key for me:

INTERVIEWER: "So what can the left do to turn the tide?"

WAKEFIELD: "I think they ought to take a page from the right. Some of the very conservative evangelicals, when they allied themselves with Catholics, came up with the term "co-belligerents." They said that while they don't believe in the same faith as the Catholics or agree on a lot of issues, at least they can agree on being against certain things, such as abortion, gay marriage and many gay rights. So I think that the secular left and the religious left ought to say that even though they don't believe the same things about faith or religion, they certainly agree that there ought to be an end to the war in Iraq, a much more active program to combat poverty and to give healthcare to everyone and issues like that."


The reason this is key is that it tells both the religious and secular left--"Hey, you don't have to agree that abortion rights should be curbed. Just fight the economic battles against the corporate right--together!" I would add that most secular left activists I know or have met are already, and have been for quite some time, very respectful of religious folks. On the other hand, I hear religious left folks often saying that the secular oriented left does not show them respect. Here is Jim Wallis, a great guy who has spearheaded much of the still slow rise of the religious left, being interviewed by Mother Jones:

"MJ.com: Is that what you mean when you say the Left doesn’t get it?

JW: [Democrats] forget their own progressive history...I think people who are religious or, say, even spiritual, have not felt like there’s much of a home on the Left. That’s at least a huge political concern. Even those who aren’t religious need to respect people of faith...

MJ.com: What would you say to what you call in the book “secular fundamentalists” who say, “I don’t want anything to do with religion, and I don’t want my politics or my party to have anything to do with religion either?”

JW: I don’t call all secular people 'secular fundamentalists.' At every book stop, people say, 'I’m secular; I’m an agnostic. Thank you for making me included tonight. I feel spiritually inspired, but I’m not religious. But I care about moral values.' So, to those people I would say, 'You know, you can be who you are, but just respect people who are people of faith and include [them] in the movement.' To the secular fundamentalists who want to exclude any religion, I would say, “Do you want to lose every election for the rest of your life? Get smart. Remember progressive history.' We all have an investment in our politics having a moral compass."

(Italics added)

Notice that Jim Wallis assumed the people he spoke with were disrespectful toward religious people. That is a bad, and likely wrong, assumption to make, especially since the people came out to see him in the first place. Reading what Wallis says, what these people were saying was that they were glad not to feel excluded by those who are religious, which, from my personal experience, is a more likely scenario. Where religious folks feel disrespected is more often from certain culturally radical behavior on television and radio, not left wing activists and people interested in social justice. To conflate the two is to inhabit the world of Sean Hannity and Ann Coulter--who always seem to find a way to be on television and radio nearly every day.

To get to the grand coalition to work, it is important for the religious left to name specific names if they are going to make such accusations so we can avoid broad brush painting that only undermines the coalition. Better yet, let Sean Hannity and the other right wingers attack secularists, while those of us interested in social justice, whether religious or secular, stay focused and act in solidarity with each other.

General Hayden is a liar or a putz

General Hayden thinks we have to have the "needle in the haystack" approach in mining telephone calls because, he claims, if the US had been doing that before 9/11/01, we would have stopped the events of that day. He then specifically pointed to the two Al-Queda operatives in San Diego who he said would have more likely been caught if searches without warrants were allowed.

Larry Beinart, over at the Huffington Post, has posted a devastating response to the General. Beinart's response is consistent with the facts contained in the 9/11 Report (see section 7 of the report, entitled "The Attack Looms."). The two Al Queda operatives in San Diego were known to both the CIA and FBI and information traveled to the top levels--yet nothing was done to fit the pieces together. This was a problem of competent intelligence analysis at the top levels, not the lack of ability to secure information.

General Hayden must know this basic information. However, Hayden arrogantly and deceitfully avoids the basic truth the way a vampire avoids the light. Of course, this is same General Hayden who insisted the Fourth Amendment to the US Constitution does not mention the requirement of "probable cause."

Arrogant. Stupid. Liar. One or more of these words applies to General Hayden. The bottom line is that anyone in Congress voting to confirm this jerk is worthy only of condemnation.

Personal note: I'm off from my trial today, which resumes Monday afternoon. So far, very good. But the fighting is in rounds...

(Edited)

Be a part of the wave against the Worst President and his Cronies

I am in trial this week, which explains the "no blogging zone" at this blog.

However, I just read that Francine Busby, the Democratic Party candidate who is running for Congress to replace the odious "Duke" Cunningham, has pulled ahead of the Republican candidate Brian Bilbray. Because she is still not at 50%, we should be cautious about reading too much into this poll.

To give her the staying power against the slime machine being operated against her by "independent" Republican groups in television ads, I have just made an additional money contribution to her campaign. Please consider doing the same. Again, I am not affiliated with the campaign and it is in the district next to mine so I can't vote for her either. I do believe, however, that defeating the Republican candidate in this district, which was drawn to favor Republicans, will become a shock wave against the corrupt and elitist Republican dominated Congress and will serve notice on the Worst President and Worst Vice President that their poor poll numbers have consequences.

Let us also be realistic in recognizing that the Democratic Party lost control of Congress in 1994 because of its arrogance, its being more in touch with lobbyists* and corporate donors than its grass roots and fellow Americans, and its inaction in the face of America losing its manufacturing base. And Francine Busby is not the coming of the Messiah.

The point of donating to Ms. Busby, however, is this: By helping elect Ms. Busby, we energize a growing movement throughout the nation to elect Congresspeople who will demand accountability from the Worst President and Worst Vice President; to stand up against the drift and continuation of the Iraq War II; to constructively engage with Iran; and add one more voice in Congress who understands the need for rebuilding New Orleans and our nation from an economic standpoint.

* Did I mention that Bilbray is a "lobbyist" and has been less than straightforward about where he lives in terms of running in this district? On the other hand, let's understand that "lobbying" alone is not a crime nor should it be. It's just that Bilbray's profession isn't the best one to have while running for office in 2006.

Al Gore's comeback continues...

Watch Al Gore here on Saturday Night Live from last night. Gore is in top form, making fun of himself, blasting the Worst President, and showing his loss in 2000 has turned out bad for our nation and perhaps the planet--but it was good for Gore in terms of refocusing Gore away from Martin Peretz and the Democratic Leadership Council and toward the Paul Wellstone "Democratic" wing of the Democratic Party.

As I wrote here and here some months ago, in which I discussed this Gore comeback looking like Nixon's comeback scenario, let's not assume that Gore winning in 2000 would have kept us out of Iraq--for Gore was heavily invested in the Joe Lieberman wing of the Democratic Party at that time.

However, this analogy of Gore to Nixon, in the technical sense of Nixon coming back in 1968 after losing a close election in 1960 continues to develop. Remember Nixon appearing on Rowan & Martin's Laugh-In, a forerunner of Saturday Night Live? I saw that in real time and was shocked to hear Nixon use the show's famous tag line, "Sock it to me!" except he did it with a slight questioning inflection. Nixon still looked uncomfortable as he said it--unlike Gore last night.

One more thing: Watch Gore's speech on SNL to the end and note his genuine and beautiful smile. Gore may be finally comfortable in his familial shoes, the same type of shoes his father, a New Dealer, once wore.*

* Though his Dad, a Southern New Dealer, did vote against one of the civil rights bills (only one) in 1964, after supporting such bills before and after, and also was in bed with Occidental Petroleum. Nobody's perfect, but Al Gore, Sr. was a great man who I have always admired.

A short guide to NSA snooping for phone numbers we call

As I gear up for a trial expected to last a few weeks--alert: light blogging ahead--I thought I should put in my two or three cents on the issue of the National Security Agency sweeping up and logging the telephone calls most Americans have made to each other, domestically or internationally.

Sophisticated defenders of the president, such as law professor Orin Kerr, say there is no violation of the Fourth Amendment to our Constitution in the actions by the NSA. Kerr cites Smith v. Maryland, 442 US 735 (1979), which held, in a 6-3 decision, that the warrantless use of a pen register placed at a phone company--not the individual's home--is not a violation of the Fourth Amendment. A pen register is a device that logs the phone calls that are dialed out and in to an individual's phone number.

This is what the NSA is supposedly doing with most Americans' calls. The NSA, in doing this, is looking for patterns of calls that may cause the NSA to want to devote further investigation if something peculiar turns up according the computer programs monitoring the calls. This strikes me as a needle in the haystack approach, far less effective than good ol' agents penetrating groups that are already suspect, but let's leave that for other comments.

In any event, my view is that Orin Kerr is ultimately going to be proven correct if this matter came before the US Supreme Court in its current lineup. While I personally believe Smith v. Maryland can be factually distinguished, and narrowly construed, because that case involved a single individual who the police already had some reason to suspect, there are now a majority of Supreme Court Justices would probably disagree and find the Smith decision controlling. Therefore, a majority of the current justices will uphold the Worst President's use of the NSA in this instance--on Fourth Amendment grounds.

However, Glenn Greenwald, another law prof (more akin to my views, I will say), notes there is the FISA law passed by Congress in 1978. Per Greenwald, the FISA required the Worst President to have sought a review by the FISA board (you know, the board that had already approved nearly every single request of the US government to spy on people since it was set up in 1979). The Worst President simply by-paased the FISA. Thus, the Worst President violated the FISA law.

In rseponse, the administration takes the position that the president has inherent powers to do this sort of thing--and that Congress can't pass laws to limit those powers. Here, most profs, even Orin Kerr (who is a Republican supporting libertarian, I believe), are of the view that the inherent powers of the President do not reach that far when Congress has deigned to act.

So, based upon the above, the "simple" answer to the question as to whether the Worst President "violated the law" with regard to the NSA logging Americans' phone numbers we dial or who dial into us is this:

1. No likely violation of the Fourth Amendment, due again, to the current Justices serving on the US Supreme Court; and

2. Highly likely that the Worst President violated the FISA law, with the current Justices on the Supreme Court rejecting such a sweeping assertion of presidential power. Even Orin Kerr blanches at that, if you read the link I gave above. Further, the US Supreme Court, including Scalia, has already told the Worst President, a year or so ago, that he overstepped the bounds of constitutional propriety with his administration's broad definition of enemy combatants.

Give Barry Bonds a break already!

Bill Plaschke, a sports writer for the LA Times, wrote a malicious and ignorant article today that the Times wrongly placed on the front page of its sports section. The article is worth a read, however, because it is emblematic of a type of arrogant beat sports writer who hates any ball player, especially a successful one, who doesn't kiss his ring.

Here is my letter to the Times in response (I add links here, though, and correct two typos!):

"I know Bill Plaschke hates Barry Bonds, as do most of his fellow self-indulgent sports writer friends. But Barry Bonds, even as it looks like he took steroids, did not use any substance Major League Baseball had banned. I write, however, because Plashcke has been smoking some serious weed if he thinks Babe Ruth was as clean as Bonds is supposedly dirty. Plaschke obviously knows very little about Babe Ruth other than some movie he may have seen as a child. First off, Ruth was a notorious drinker and party hound, had suffered from gonerrhea due to his sexual escapades, and definitely treated baseball as a business. Ruth sat out games, skipped team buses or trains when it suited him, threw tantrums with owners if he didn't get his way, and was very pushy in terms of his salary. Ruth's longtime Yankee teammate, Lou Gehrig, had very little respect for Ruth as a man. Yes, Ruth was easy with money for people, but Bonds is no slouch, either. Maybe if Plaschke started with Bonds' official website, he'd have some idea of the impressive philanthropic work Bonds has authorized and paid for over the years. Plaschke even takes the cheap shot at Bonds for not signing autographs--as if Babe Ruth would have been very different in today's world of card scalpers and dealers.

Plaschke says Ruth changed the game in a good way, but Bonds changed the game in a bad one. But Plaschke is only half right. Barry Bonds did not change the game in a bad way--because Bonds was not the only guy pumping up. Want to blame someone? Try blaming Bud Selig and the other owners, who turned their eyes away from steroid use among players in order to get people back to games after the disastrous 1994 strike.

And let's not forget one thing: Barry Bonds, throughout the 1980s and 1990s, before pumping up, was one of the top two or three star players of his era. Was he ever part of a team that won a World Series? No. But neither did Ernie Banks or Harmon Killebrew win a World Series in their day. So lay off Bonds already. I know he doesn't like talking with you, Plaschke. But, after reading your column, I don't blame Bonds a bit."

(End of letter)


I must add this: I'm not saying Barry Bonds is an angel or that I support what he did. What Bonds did was wrong because, first and foremost, he was hurting himself with steroid use. Worse, he knew it was wrong because, per the sports stories swirling around, he didn't bother using the steroids until after McGuire and Sosa became home run heroes in 1998--and it looks like they were on the stuff, too. But Bonds has always struck me as a guy who was more loved than hated by his fellow players and teammates, which is where we should start before judging him the way Bill Plaschke did.

As for Babe Ruth, anyone interested in the life of the Babe should start with Robert Creamer's seminal bio of Ruth, "Babe: The Legend Comes to Life" (1974/reissue, 1992, Simon & Schuster). I will say, though, that the Wikipedia entry on Ruth was damned good. As for this new book on Ruth, I am concerned it might be hagiographic. However, it still sounds quite good and probably worth the read.


ADDENDUM: Plaschke rips Bonds for blowing a play that supposedly cost his team a chance to go into the World Series--not like Ruth, he says, who was on a great team--with other players, Plaschke!--that won 7 World Series. But here is Wikipedia (scroll down to "Return to the Top") as to why Ruth was not on a team that won 8 World Series:

"With Bob Meusel at bat, and Lou Gehrig in the on-deck circle, Ruth pulled the most notable on-the-field gaffe of his career. He inexplicably took off trying to steal second base, and was easily thrown out by catcher Bob O'Farrell, ending the game and giving the Cardinals the World Series (over the Yankees)." (Parenthesis added)

Plaschke says Bonds calls many people "Bleeps" (Plaschke was being cute here). Maybe Bonds just calls sportswriters like Plaschke "bleeps", which is, in my view, quite appropriate under the circumstances. The point here is not to attack Babe Ruth, but simply to put the truth about Ruth's life into perspective when comparing it to Barry Bonds.

(Edited)

Sunday night reading: Iran nukes, etc.

1. This article from the NY Review of Books explains why I don't listen too much to people who tell me the Iranians are ten or so years from having an operative nuclear weapon. The record of such predictions is woefullly off with regard to other nations in the past fifty years. Don't be surprised if the Iranians have an operative nuclear weapon by 2009, for example. UPDATE: Please don't assume from this that I currently support a military solution with regard to Iran. I have backed off my original belief in such a solution based upon further analysis, as I noted a few weeks ago.

2. The venerable Andrew Hacker, a very sober analyst of wealth and racial issues in America over the years, also has published an interesting essay review, in the NY Review of Books, on the supposed difficulties in pinpointing dividing lines as one moves up the economic ladder. My disagreement with him is why he waited until the last paragraph to explain what is fairly easy to detect from the various studies and data:

"Does it enhance our understanding to look for classes in America? As has been seen, any group we choose to call the 'middle class' is so large as to be of little analytical help. Nor do the huge majority who are not rich qualify as a class. Moreover, there remains a very well-paid tier of corporate executives between them and the truly rich. Yet, along with the increased concentration of wealth, we are seeing millions of Americans being laid off, settling for lower paying jobs, losing health coverage, and watching pensions evaporate. Economic inequality is increasing, just as the millions who are born and stay poor are not getting anything like a fair chance to improve their situation. Victims of outsourcing don't fit into a single class, nor do the people who suffer most from living in a society that is increasingly unequal and unjust. To see these trends as matters of class does not explain them. What is clear is that we have yet to see any convincing ways of reversing them."

To put it more starkly. Compare the lives of children who are raised in families earning the median family income ($35,000 to $50,000 depending upon the housing and mortgage factor) to those earning say $200,000 in wages. There is a signficant difference in the chances of the respective cildren achieving high income levels--even as that $200,000 a year wage earner can remain concerned that he or she is only 3 missing paychecks or a lost job away from median income levels at the next job that could be a year away. While there is a significant difference in upward mobility for children of median family wages and children in "lower" upper class wage families, both are significantly less well off than the super rich. The point, Hacker reminds us a bit late, is how the super rich and those whose incomes are based upon investment income, not wages, are increasingly untethered from the rest of us. He might also have added that a review of the income levels will tell us there is plenty of potential tax money not tapped from such super rich folks.

3. Finally, two books reviewed in the Washington Post Book World cast light on two events in our nation's history: The 1979 seizure of Americans in Iran (which brings us back to Iran nukes) and the meeting of Pilgrims and Native Americans in the early 1600s.

(Edited)

"Blue Dress" Goss is gone, but his replacement is even worse

Most politically awake Americans know that Porter Goss, the jerk Congressman who became a jerk head of the CIA has suddenly resigned. That he may be a target of the widening sex scandal arising out of Duke Cunningham's scandal is less clear. However, there is reason to doubt the Negroponte-Goss "turf" war that, before Thursday, nobody appears to have noticed; which should be a red flag to anyone wanting to buy the turf war theory.

It would, however, be ironic for Goss to be involved in a sex scandal because it was Goss who, when asked to investigate the Plame leak while a Congressman heading the intelligence committee, famously said he would only investigate if there was a "blue dress" and "DNA."

Now, when asked why he resigned, he says, with cryptic sarcasm, that his resignation is "just one of those mysteries."

His replacement? General Michael Hayden, who is an intellectual scion of the fictional, yet infamous General Jack D. Ripper. Here are Digby and Glenn Greenwald on Hayden. I can't wait to hear what Hayden thinks of flouridation and his concerns about his "precious bodily fluids."

(Edited)

Someone please tell the Democratic Party leadership in DC?

E.J. Dionne, in today's Washington Post, says something that every Democratic Party candidate and incumbent should read: The Republicans now want to sound like New Deal Democrats.

Will someone please tell Pelosi, Reid, HillaryBiden, Lieberman, and the whole damned Democratic Leadership Council (DLC--or "Dilks" as I've long call them) crowd--and their stupid political consultants who tell them to sound like Republican Lite?

George Will: "I hate liberals, don't you?"

Shorter George Will:

When conservatives attack anti-social behavior in media programming and advertising, it is because they are defending our best traditions. When liberals attack anti-social behavior in media programming and advertising, they are simply being condescending elitists.

Shortest George Will applicable to most of his columns:

I hate liberals, don't you?

Universal health care. Way past time for US to adopt.

As I've been super busy with various litigation matters heading to trial, I simply not had the time to pay proper attention to the world. However, Kevin Drum (Washington Monthly) has been on fire on the health care issue.

See here.

See there.

See (well not everywhere, Sir Paul), but here, too.

I strongly recommend reading his links, especially to Ezra Klein.

My three cents:

1. The reason our system is worse than reportable is that our Balkanized system does not keep track of people who fall through the cracks, don't get the type of "maintenance" treatment they need, then have expensive treatment for a few days and die. We all know people (I do at least) who fit within this scenario. The reason most of these people don't get maintenance treatment has to do with the relative lack of access to medical care. What your typical right wing or libertarian fails to note is that nearly every French, German, British, Canadian, or Japanese citizen has a government-based paper trail that the wonks for the right/libertarian axis can use to highlight each person who may still fall through the cracks in each of those nations' systems. Isn't it interesting, per Ezra Klein, how Germany and France may not have long lines, per polling, but that it is difficult to track that in their particular systems. Each system has its particular blind reporting spots, which can be remedied more easily, one should note, in a universal coverage system. Again, that is why our system (calling it a non-system is too kind as there are inputs and outputs) is even worse--and costs twice as much as most of these other nations spend on health care per capita.

2. Next time someone tells you "If we adopt universal care (sometimes called single pay), then our taxes will go up," just say: "Only if you think your premiums you pay to rich bastard corporations are not taxes. Also, if we can save health care costs per capita by losing 1,200 different companies' lawyers, sales and marketing departments, accountants, and obscene sums for executive compensation, you'll pay less overall--unless you're one of those executives making obscene amounts of money."

3. Critics of the Canadian system love to talk about it having less CAT scans per capita than in California (Canada's population is about the same as in California). However, such critics often fail to note that, in Canada, the CAT scans are running throughout the day for use by its citizens, whereas in CA the many CAT scans will go unused throughout major portions of the day (bad allocation of resources, for you economists out there). Second, yes, it is true that Canada's system has not kept up in spending for its system, largely as a result of its losing national wealth from the decline in good paying jobs--it's lost over 400,000 manufacturing jobs and the replacements have been in lesser-paying service sector jobs. That is not a reason to blame the universal coverage system (the link is from Malcolm Gladwell, who has now changed his mind and supports universal coverage).

Finally, Canada's system of health care for many regions was non-existent before Canada introduced universal coverage in the late 1960s. Since then, Canada's universal coverage led to great technological advancements, including and especially in cancer treatment and kidney and liver transplants. I don't have the time to link here, but check out David Himmelstein's and Stephanie Woolander's work at the Harvard Medical School, where they studied this in the 1980s and 1990s.

Kevin Drum, in the second link cited at the beginning of this post, says it is a "mug's game" to try and defend the Canadian system, but I say we should do that, too. I do agree with Kevin, though, that our nation's focus should be on improving access and the health of our nation's citizens. Only through a universal coverage system will these improvements occur.

(Edited)

Same old misleading garbage from the Social Security "Trustees"

The Trustees of the Social Security system, a horrible group of people who lie about the health of the program they are supposed to be overseeing, were a month late in releasing their yearly report. They are so desparate to show Social Security is in trouble, but the worst they could come up with was the beginning of a shortfall in 2040--rather than 2041 as they said last year. This "one year sooner" analysis was created by tweaking the productivity rate "0.1%" higher, while lowering the interest rates expected to be set by the US government in the next few decades (which in turn lowers interest received on the Treasury bills the Social Security system has purchased as it loans its surplus to the US government to fund stupid things like the Iraq War II). They managed, however, to maintain their assumption that the Gross Domestic Product (GDP) will remain lower, over the next 75 years, than the years of the Great Depression (1930s). This accounts for the Trustees' basicly glum view.

Here is the Associated Press article. However, read these last two paragraphs and kiss the sky in thanks for Senator Jack Reed (D-RI):

"Sen. Jack Reed, D-R.I., said that if Congress approved Bush's request to make his tax cuts permanent and enacted a permanent fix for the alternative minimum tax, which was designed to tax the wealthy but is falling on more middle-class tax payers, that would represent a cumulative revenue shortfall equal to 2 percent of the total economy over a 75-year period.

"That is three times the shortfall estimated by the trustees for Social Security over the same period, Reed said."

Senator Reed most likely received his information from the Center for Budget and Policy Priorities, which posted its response to the Trustees' report here.

And here is the Center's director, Bob Greenstein, with his statement on the Trustee's report on both Social Security and Medicare. He shows the Trustees are not much better with regard to their evaluation of Medicare.

Last year, in my post dated June 29, 2005, I discussed the fact that if one merely assumed the GDP growth rate averaged a mere 2.5% for the next 75 years, the Social Security system would continue paying benefits throughout the rest of this century--far later than the year 2041.

Here's the garbage, I mean, report. Note that this year, they still think the GDP and productivity rates are going to be below most recessions in the 20th Century and early 21st Century US for the next 75 years. Also, here's Kevin Drum's (Washington Monthly) take.

Bottom line: There's more danger to the Social Security and Medicare systems from the Worst President's tax cuts being made permanent--and continued incompetent and reckless government from the Republicans (and the Joe Lieberman branch of the Democratic Party) than anything inherent in the programs themselves. That is the outrage. The insult on top of this outrage is the Trustees' consistently dishonest reports that are released every year.

(Edited)