Election Eve Plea to the Baby Boomers

Our politics are different. I get it. I am a liberal progressive. You are staunchly conservative. I get it.

However, please think about your children, grandchildren, and parents when you pull the lever tomorrow. Remember that your parents stormed the beach in Normandy to defeat fascism. Remember that they stood down both communism and fascism in their lifetimes. Remember that you were raised in an era where what was best for the country dominated political discussion, not what would best stick it to the other side.

Remember that you were raised in an era when the "fairness doctrine" forced users of the public airwaves to provide equal time to opposing political viewpoints; as opposed to now, where you can listen to the radio in Indiana all day and, with the exception of Lake Co. where Chicago stations are available, you will never hear a spirited defense of liberalism; rather, you just listen to straw men being knocked down, day in and day out.

Remember that you were raised in an era when how well the working class was doing was more important than how well the financial markets were doing; we now live in a state that recently passed a Right to Work law.

Remember that you were raised in an era that had considerably less national wealth than now, yet managed to provide more and better public services. We now live in an era where college costs tens of thousands of dollars per year and cuts to Social Security, Medicare, and Medicaid are looming (to get the debt under control following the $1.5T tax-cutting orgy that has reduced my taxes by approximately $50).

Remember that, from George Washington through Jimmy Carter, we built up a national debt of $1T. That number is now nearly $22T. (And no, it wasn't all Obama's doing, either).

Remember that your kids had to incur debt approaching a mortgage to get that college education that you financed with a summer job. Remember that your kids have another mortgage payment to pay for health insurance, whereas when you had young kids health insurance was approximately as costly as county income taxes. Remember that your children, for all of their faults, are raising your grandchildren. Remember that your grandchildren will also need healthcare and an education, both of which are becoming increasingly unaffordable.

Remember that your generation was given much by its forebears; and its forebears was given much by theirs.

Remember, as we all do, that Bill Clinton lied when he claimed "I did not have sexual relations with that woman." Recall that Barack Obama needlessly exaggerated when he said "If you like your plan, you can keep your plan." (He should have qualified that with "For 90% of those affected" but the opportunity to do that has past). Recall, also, that these lies stick out because they were anomalous. Recall that, as of Friday, Donald Trump averaged 30 false or misleading claims per day

Recall that no previous president in your lifetime has gleefully promised to lock up his political opponents. No previous president in your lifetime has publicly declared that the media is the "enemy of the people."

Remember that the world as it is now is a result of your lifetime of choices, just as it used to be the way it was because of your parents' choices.

You did not vote for the policies that led to Vietnam or the Great Depression, but you did vote for the policies that led to Iraq, Afghanistan, and the Great Recession.

If you like the way the world has changed since the "good old days," then keep voting the way you have since the "good old days." If you think that your grandchildren are getting a worse deal than you did, perhaps you think about changing your voting behavior.

America will be here longer than you and/or I will be. When you vote, please think about the world you intend to leave behind.

On Halloween

I don't like Halloween, and I'm not quite sure why. One would think that it's right in my wheelhouse: Pagan celebration? Check. Creepy stuff? Yes. Occult? Roger, Roger. Celebration of villainy? For sure!

Getting away from the theme of the holiday itself, I also think that the rituals of Halloween are, themselves, positive. Kids going through the neighborhood, collecting candy from benevolent elders who are keeping an eye on the neighborhood to try to keep it as safe as possible? Count me in.

Unfortunately, I feel like Halloween in my neighborhood is underperforming. A minority of houses pass out candy, and I believe that's deleterious to the neighborhood. I fully understand that the neighborhood is teeming with trick-or-treaters who don't live here on Halloween. I guess I view it as a positive that they want to come to my neighborhood on this holiday. This is the destination. I hope I'm a good host. Nonetheless, numerous people keep their lights out and don't answer the door. It's a bummer.

Keeping to the point, thought. . . I just don't like Halloween. Probably because of the makeup and costumes. Is there a Grinch for Halloween? Unfortunately, I think that "he is I and I am him."

What Might Have Been . . .

Justice Sandra Day O’Connor and Chief Justice William H. Rehnquist (Photos via Library of Congress)

To be specific, Sandy, will you marry me this summer?

— William H. Rehnquist, then a law student at Stanford Law, in a letter where he proposed to his then classmate, Sandra Day. Day turned town Rehnquist’s proposal and later married a different classmate, John O’Connor. Rehnquist and O’Connor later served on the high court together, and remained friends their entire lives.

HT: Above the Law 

Quibbling

Donald Trump is 78.3% down the path he’s been following from failed real estate investor/non-stop grifter/reality TV star to fascist dictator of the United States of America. To quibble over whether any of the possible Democratic candidates who could throw a roadblock into that path would be a better president than any other seems like trying to pick the most stylish lifeboat on the Titanic.

Sometimes all you can do is just tip your cap.

"Standing"

I wrote this for the Speedway Town Talk, and I figured I'd post the un-edited version here:

I was approached recently[1] by a guy who “almost” hurt himself when slipping in a store, and another guy who was cut off by a truck driver “who could’ve killed someone.” Of course, in my line of work, the first question they asked me was whether they could bring a lawsuit.

                The answer is, generally[2], “No. You can’t.” My reason? “You don’t have standing.” The logical next question is, “What is standing? What does that mean?”

                Well, the answer is simple and infinitely complicated. Having standing means that you’re not asking the court to decide a hypothetical question. It means that you have actually been wronged and, at least assuming you can prove your allegations, are entitled to and can expect redress for your injury.

It means that the guy who almost hurt himself when he slipped in the store hasn’t been wronged and isn’t entitled to anything by the court; the guy who was cut off by the trucker wasn’t killed or hurt in any way . . . it’s not his fight. The doctrine of standing has nothing to do with the actual “merits” of the case. It doesn’t decide whether the store where the guy slipped was negligent; it doesn’t address whether the trucker was indeed driving like a maniac. It just asks whether there is an actual controversy to be decided by the courts.

                To have standing, one must generally demonstrate three things: (1) the Plaintiff suffered an “injury in fact,” i.e. a concrete, discernable injury, as opposed to a hypothetical or conjectural one; (2) the injury noted in element #1 is fairly traceable to some conduct of the defendant; and (3) a favorable judgment in court would fairly address the injury. See the late Justice Scalia’s opinion in Lujan v. Defenders of Wildlife if you are interested in more reading on the matter.

                As a fine (yet absurd) example, I can’t sue Satan (yes … the actual Prince of Darkness) for enticing Adam to eat the apple and thereby harming humanity, of which I am a member. Even if the Supreme Court of the U.S. sides with me, my injury is “non-justiciable.” There’s nothing they can do.

---

[1] Which is to say, “In my lifetime.”

[2] As always, this is not legal advice, as the world offers infinite circumstances that are open to interpretation.

I would like to point out that one of the reasons I write about standing is the overwhelming desire by so many people to insert themselves into a controversy even though it's not their controversy. I wrote recently about people trying to drive the new pet store in Speedway out of existence. It's not their controversy. I hear about people who want to do "something" about the way Zore's drivers drive. It's not your controversy.

Bottom line: if you don't have standing, then butt out.

Lives v. Livelihoods

I play in a few rock n' roll bands for charity. One of the bands has a part-time member who is a bona fide professional musician. Other than the varying talent levels, what is the difference between myself and the bona fide professional musician? I will only play music that I like. The pro will play whatever he gets paid to play.

I presume this is because music is my love (and possibly/probably his as well) but it is his livelihood. If he doesn't play what people pay him to play, people don't pay him; he doesn't earn his living. If I don't, I simply go back to practicing law, which I was going to do anyway.

When it comes to law, I take plenty of cases I don't particularly love, because it's my job.

I have noticed that a lot of people have made a sport of bashing the Speedway Animal House. Full disclosure, I am not an animal lover. However, I think that too many people are applying their own sense of morality, attributable to their own love of animals and pets, to the business practices of Speedway Animal House.

I don't like mushrooms, "eggs" that come in a milk carton "pre-scrambled," canned gravy, or paper-thin bacon. That's why I don't eat at Charlie Brown's anymore. I eat at Flap Jacks on 10th Street, which I find to be a much superior choice. I don't go out of my way to bash Charlie Browns for the type of food they sell. Maybe somebody likes it?

I don't like "solid state" amps. I don't bash every guitar store on earth for carrying them. I just don't buy them.

My bottom line is that people need to leave the Speedway Animal House the hell alone if they don't like it. If you  don't like a business' practices, don't shop there. Don't expect a business owner to necessarily care as much about your passion as you do; a business exists to make money, not push anyone's moral crusade. Assuredly there are tons of better targets for our moral protests in the world of corporate America (oil and other chemical companies polluting our air, water, and ground; Big Pharma actively pushing and marketing opioids to the masses, to say nothing of Big Tobacco's track record; arms manufacturers selling their wares to dictators . . . just to name a few). Leave the local business alone; if people don't want to shop there, they won't. If they do, then the proprietors of Speedway Animal House are entitled to carry forth with their legal business.

If you have nothing better to do than drive a locally owned business underwater, you need to find a new hobby. Pardon my rant.

Brett Kavanaugh - Where We Are

Either reader of this blog knows my feelings on Donald Trump, movement conservatism, and the national Republican party. It will come as no surprise that I oppose Brett Kavanaugh's elevation to the Supreme Court.

I also believe that whether he is ultimately confirmed or if it is somebody else on Donald Trump's infamous list of Federalist Society Reactionaries, the legal outcomes will be the same.

So, I can't help but ask why the numerous defenses of Judge Kavanaugh from the right? Regardless of whether Kavanaugh or someone else on the list is confirmed, we can be assured that this 5-vote conservative majority will:

• refuse to find any burden, whatsoever, to be "undue" under the Casey test;
• will likely continue to create exceptions to, if not wholly repeal, the exclusionary rule;
• will hamstring the ability of administrative agencies to participate in rule-making and adjudication, effectively rendering them toothless advisory boards;
• continue to use the 1st amendment as protection against pretty much any meaningful regulation of either the economy or political spending; and
• elevate the 2nd Amendment to the level of sacrosanct and essentially (to the extent it has not already been done) read out the part about "a well-regulated militia."

All of these are longtime conservative policy goals. All of these goals would be advanced by pretty much any one of the Federalist Society judges, as these judges have been groomed in conservative ideology for decades.

So, why the defense of Brett Kavanaugh?

I don't know. I hear people say that he is an innocent man who has been slurred, but I have a few points to add to that:

1. This is not a criminal investigation. "Beyond a reasonable doubt" and "presumed innocent" are fine phrases when we're talking about depriving someone of his freedom. They have no place in what is a job interview for a lifetime, exceedingly powerful, position. Nobody on the right demanded that Hillary Clinton be "presumed innocent" of all of the charges they hurled at her (BENGHAZI!!! EMAILS!!!). I don't recall Donald Trump presuming that Barack Obama was born in the United States. On a personal level, if I was looking to hire a babysitter and heard a rumor that a particular babysitter liked to get drunk on the job and steal from the houses at which she babysat, I wouldn't be looking for corroborating evidence, giving a presumption of innocence, or demand proof beyond a reasonable doubt. The rumor would suffice for me to look elsewhere. My babysitter does not have the power to interpret the U.S. Constitution and determine the breadth of my rights for the remainder of his/her life. A Supreme Court Justice does.
2. In litigation, there are numerous presumptions that we can make based on testimony. A generally known principle in criminal litigation is that a false exculpatory answer, when proven to be false, is pretty strong evidence of the accused's knowledge of his own guilt. Judge Kavanaugh made some fairly ludicrous statements: Beach Week Ralph Club refers to his weak stomach; Renate alumnius [sic] had no sexual connotations, even though Renate Dolphin (the self same Renate) is insulted by the reference; Devil's Triangle is a drinking game (that nobody has ever heard of) and not a sexual reference (that is fairly common). The list goes on and on, but these statements really stretch credulity, and he offers them as exculpatory. While I am not entirely convinced that he is lying, I have significant misgivings about it.
3. Similarly, while a polygraph is not strong evidence of the truth of a statement, it is strong evidence of the speaker's belief in the truth of such statement. Dr. Ford took a polygraph. The results do not demonstrate that her statements were true, but they demonstrate that she believed them to be true. Has Judge Kavanaugh been subjected to a polygraph?
4. Dr. Ford repeatedly requested an investigation into her allegations. Brett Kavanaugh said he would "do whatever the (Republican-controlled judiciary) committee wanted." If he is so innocent of these charges, why is he not demanding an investigation into them? It says a lot to me that when two people are making mutually exclusive assertions, and one of them wants the matter investigated and the other doesn't.

I could go on, but I'm pretty sure the point is clear. 

I also note the defenses of Judge Kavanaugh. Some say "he didn't do it," but given Dr. Ford's credible testimony, Kavanaugh's defenders have a difficult time simply saying she's lying. So, they come up with a series of defenses:

• It actually happened, but Dr. Ford is mistaken about who did it;
• Even if it did happen as Dr. Ford says, it was a long time ago and we should forgive his behavior;
• Even if it did happen, he never actually raped her so it doesn't really matter.

I am not particularly convinced by any of these rationalizations. 

On Abortion

I generally try to stay away from discussing abortion because those with whom I disagree are not persuadable, nor am I.

I am pro-choice. I believe Roe v. Wade was correctly decided. I believe that Planned Parenthood v. Casey was a disingenuous roll back of Roe v. Wade. I believe that the coming conservative majority of the Supreme Court will not have the guts to explicitly overturn Roe v. Wade or Casey. Rather, I believe they will spinelessly re-affirm both precedents while never ever finding a burden on abortion that is "undue."

With that said, I say this to my pro-life friends (who also happen to style themselves as "small-government conservatives"): A government that has the power to force you to refrain from an abortion likewise has the power to force you to have one. Just look at China's one-child policy. Is that what we want?

Insult or Injury - Part 2

Tabletop Joe is no friend of Senator Mike Young's politics. This much is clear. And like most people, Tabletop Joe doesn't care to be lied to.

Mike Young likes to lie to me or, at the very least, communicate with me in bad faith. My lone reader will recall my recent rant about Mike Young and his track record on education. Well, this morning, Mr. Career Politician who got his law school paid for by the public and has spent his life currying favors for his donors Young sent me another message, this time touting the new policy that will allow for the use of public money to put metal detectors in schools. Nevermind the reason why the metal detectors are necessary, right?

Well, that inspired me to look up some advocacy groups' "scoring" of Senator Worthless Young. My research found:

• A grade of D from the Indiana Coalition for Public Education in 2016; and
• An award for Excellence from the American Conservative Union in 2016 (which scored positively, among other things, Sen. Young's votes to allow guns in the capital and school corporations to hire unlicensed teachers).

There is plenty more, but I note that Sen. Young brags about "protecting schools" while doing nothing whatsoever to curtail the epidemic of gun violence and undercutting the quality of the teachers in the classroom. 

I voted for Phil Webster in 2016 and would do so again in a heartbeat. I know Coach Webster personally, worked with him at Decatur Central, and have the utmost respect for him. Mike Young? Not so much.

Hearing Mike Young tout his record on education is like listening to Tipper Gore express her affection for the first amendment. 

Philosophical Question

This:

Is the Constitution a charter of self-government that allows the people’s elected representatives to try to find reasonable institutional solutions for the varied problems of the world? Or is it a charter for property owners that allows them to craft a state that’s well-armed and capable enough to defend their rights but incapacitated to govern the economy in any way?

Never Forget

It is no secret that I am a lawyer. Insert joke here.

That said, I have an enormous affection and respect for  the judiciary. It hurts me to my soul what is invariably going to happen to the Supreme Court.  

It was bad when they refused to so much as consider Merrick Garland.

It was bad when they eliminated the filibuster so that 51 senators, making it possible for senators representing less than 19% of the American population to put someone on the highest court in the land, for life, regardless of what the other 81% of Americans think. (And this doesn't even take into account the fact that most of those senators were likely elected with approximately 55-60% of the popular vote in the state, rendering the 19% more like a well-connected 10-11%, but I digress).

Now, we live in a world where it is highly doubtful whether the U.S. Senate will, in my lifetime, ever confirm a Supreme Court nominee from the other party. Thanks Mitch McConnell.

We also live in a world where, whether it is Kavanaugh or someone else nominated, 4 out of 9 Supreme Court seats are occupied by justices who were appointed by presidents entering office after having received fewer votes than their opponents.

We also live in a world where the Senate Majority/President is desperately trying to look like they give a damn about the allegations against Brett Kavanaugh without allowing these allegations to even slightly influence their votes. Can you say, "Gleichschritt?"

I suppose it shouldn't surprise me, after all. After all, this:

That's all bad enough. Now, consider this:

Over the weekend, Dr. Ford reached a tentative deal to testify in front of the Senate Judiciary Committee on Thursday. Most of her other requests were denied, as apparently Senate Republicans feel no particular need to respect the wishes of a mere woman. Republicans are going to make her testify first, when she’d asked to testify second. Republicans refused to call other witnesses who Ford claims have first-hand knowledge of the attack (more on that collection of heroes later). And Republicans are currently on the hunt for a woman, any woman, to do the attack job on Ford for them, so they don’t have to face the “optics” of attacking a potential survivor of sexual assault.

And Republicans are already indicating that nothing Ford says will matter to them in the least. Lindsey Graham, for instance, said: “What am I supposed to do, go ahead and ruin this guy’s life based on an accusation?”

I highly suggest you read either the linked article or one of the numerous articles available not only detailing the allegations against Kavanaugh, but also addressing the way the Senate Judiciary Committee and the Republican leadership (ahem, a bunch of old white men, ahem) has decided to handle this. It is shameful, and everytime I think we've reached rock bottom, we just keep on digging.

My Annual Rant

As N. Carolina cleans up from Hurricane Florence, I suppose it is time for my annual rant about flood insurance.

Can someone explain to me why it is that tax money is used to subsidize flood insurance:
1. On pieces of real estate that the natural ecosystem requires to dampen the impact of hurricanes, erosion, etc.
2. On pieces of real estate that the vast majority of tax payers can't afford to ever buy.

I went to the Florida pan handle on vacation a few years ago; not exactly a luxury vacation spot, I might add, but it was very nice for my middle-class tastes. I noticed that there were some houses in Seaside, FL that look as though they would fit in in many newer neighborhoods in Indianapolis. Of course, a 1,300 sq. ft. condo on the beach sells for $300,000+ down there; the cheapest single-family house I could find for sale down there on Zillow was $819,000. Based on the old adage that you shouldn't carry debt more than 3X your annual income, we can safely assume that whoever buys this house makes nearly $300,000 a year, presuming this is a primary residence. If it's a second, vacation, home, we can probably assume that our buyer makes not less than $600,000/year. In the alternative, our buyer has this amount in cash sitting around, and we can only speculate as to where s/he got it.

My point is that for all the talk about "socialism" when it comes to stuff that, you know, regular people need . . . stuff like healthcare and education, the government never seems to have the money and people pitch a fit about it.

On the other hand, when it comes to socializing the risk to which the wealthy are exposed, socialism is never even considered.

It reminds me of the old saying about "Rugged individualism for thee (poor, worker); socialism for me (wealthy investment banker)."

By all means, let's subsidize insurance for the priciest homes in America, while more than a half million of our fellow citizens, and more than 100,000 children, sit homeless.

Makes you want to scream.

Insult or Injury?

I was a public school teacher for the better part of a decade.

I left teaching to become a lawyer. People often ask me why, and I've settled on a fairly simple answer: a profession should be rewarding, either personally or financially. Teaching wasn't.

It wasn't personally rewarding for me. I could enumerate specific reasons, but this is not long-form writing . . . it would take too long. Simply put, teaching ceased to be personally rewarding because seemingly everyone, from the President to the Governor to my students' parents to my students themselves, expected me to care more about my students than any of them, including their own parents and indeed themselves. The old meme about "Welcome to teaching, where the pay sucks and everything is your fault" rings very true.

As to the finances, I'm fairly certain plenty has been written about that already. I tend to hear people who've never taught talk about how easy teachers have it; that's a crock of $hit. Anyone making such a claim is hereby challenged to (1) get licensed; (2) teach every day for a year; (3) live on a teaching salary for a year; and (4) continue talking about how easy teaching is.

As I've noted before, I am a civil litigator. I have tried cases that could result in hundreds of thousands of dollars in judgments against my clients, bankrupting their businesses and ruining their lives. Particularly when weighed against the annual income, the total stress of litigating doesn't outweigh the total stress of teaching by much.

Anyway, this is all a lead-up to the "insult to injury" email I got from Sen. Do-Nothing Government-Funded-Lawyer/Lobbyist Michael Young. Sen. Young, having voted to hamstring teachers' ability to collectively bargain for better wages, having voted to make school funding a statewide issue (so that it can be underfunded), having voted to wrench local control away from schools, now has the brass to send an email to me about Scholarships for Future Educators.

How about this Sen. Young? Maybe, instead of throwing paltry scholarships at prospective educators, you treat current educators with the same respect you would treat opposing counsel? Maybe you acknowledge that their jobs are difficult and valuable? Perhaps you acknowledge that teaching is not a hobby but a profession, and that requires actually paying people. Maybe you can acknowledge that for decades, society has been getting teachers at a cut rate because their labor is undervalued as "womens' work" as opposed to the "manly" work of construction or factory work (both of which pay better, I might add, and construction allows its seasonally laid off employees to collect unemployment; teaching? not so much).

Simply put Sen. Young, perhaps you could acknowledge that there is a large swath of society that actually makes money by working instead of trading off connections to do stuff like be a lobbyist, get elected to the state legislature, or get your law school tuition paid.l

Best quote in a long time

This:

 if you take on the job of steering the American economy, your performance will be judged based on whether or not you steered it to prosperity — not whether you steered it better than your least informed critics would have.

Interesting Tit-for-tat Hypothetical

It seems rather clear to me that GOP lawmakers have made a bargain with President Trump:

• On the one hand, they will look the other way with respect to his considerable personal corruption and that of his administration and campaign (see: Trump Hotel D.C., Emoluments Clause, Pornstar Payoffs, Profiteering from the Presidency as demonstrated by the financial information we know about Ivanka/Jared, Michael Cohen, Paul Manafort, Michael Flynn, et al)
• On the other hand, he give the GOP establishment the policy that it wants: tax cuts, conservative judges . . . the rest of the stuff can be forgiven so long as its not too egregious or costs them elections

Given the probable, though by no means certain, takeover of the House of Representatives later this year, I wonder if they too are willing to accept this kind of Faustian bargain. Allow Trump to continue to marinate in his swam in exchange for more money to social programs and cuts to the military?

Something to think about.