Serious Dialogue On The Big Issue

If we're ever going to take real steps towards reducing the debt, we are going to have to make cuts in sacred cows. And we're going to have to take steps that raise real revenue in a way that doesn't weigh down economic growth.

So despite the fact that it comes in the form of an obnoxiously long set of overly-complex and unbeautiful Powerpoint slides, I have to welcome the arrival of the President's Fiscal Commission report on reducing government expenditures. Because it's all well and good to talk about reducing the deficit, and ultimately the debt, but it's something else entirely to get down into nuts and bolts and wield a merciless scissors on the government. Because if Paul Krugman is horrified by it, there's pretty good odds that it's worth a second look.  Let me offer my own take on the high points of the idea, perhaps in a more understandable format than the one presented by the commission itself.

Proposal	Projected Impact	TL's thoughts
Revenue cap at 21% of GDP.	No direct impact	This number seems arbitrary to me. While I hope we wouldn't, if we should need more revenue, we should be able to get it.
Reduce overall discretionary spending in FY 2012 to FY 2012 levels	Unspecified	There was too much discretionary spending in FY 2010. Roll it back to FY 2008.
Sequester discretionary spending above caps	Controls spending creep	Putting spending cuts on autopilot doesn't work, because it's too easy for Congress to override.
Apply overhead savings Secretary Gates has promised to deficit reduction	$28 B	Yes yes yes! All spending cuts must apply to deficit reduction. There are no "savings" or "dividends" to spend on pretty things elsewhere.
Freeze federal salaries, bonuses, and other compensation (including noncombat military personnel pay) for 3 years	$14.5 B	Well, that's painful, alright. No one wants to tell the soldiers "no raises," and civilian workers no less.
Reduce military procurement by 15 percent	$20 B	Less equipment, etc.; painful indeed. If we don't feel the pain, we aren't tightening the belts.
Modernize Tricare, Defense health	$6 B	Looks suspiciously like "eliminate waste, fraud, and graft."
Reduce spending on base maintenance and facilities maintenance	$3.4 B	My experiences out at Edwards AFB over the past several months reveal it to be not beautiful nor particularly modern-looking, but serviceable and well-maintained. If Edwards is a good exemplar, then chances are that yes, this is a place where we can probably afford to make some cuts for now -- but we can't defer maintenance forever.
Integrate children of military personnel into local schools in the United States	$1.1 B	This is a buck-pass, not a spending cut; education costs not paid by the Feds would have to be paid by the various states. Nor does it address children of soldiers stationed overseas, for whom there is no state structure to pass the buck to.
Reduce Congressional & White House budgets by 15%	$.8 B	This is more illustrative than meaningful; Congressional offices are generally pretty cramped and only a few staffers make real money anyway. But it's important to do for symbolic purposes.
Cut the federal workforce by 10% (2-for-3 replacement rate)	$13.2 B	Do more with less? If the private sector can do it, so can the government. I like that the plan is to do it through attrition rather than layoffs.
Freeze federal salaries, bonuses, and other compensation at non-Defense agencies for three years	$15.1 B	Same as with the military personnel; these are generally hard-working people with talent and skills in their fields. It sucks for them to have to do without raises but again, we have to think differently and more frugally about our government.
Eliminate 250,000 non-defense service and staff augmented contractors	$18.4 B	Again, this is probably going to suck in practice but is probably necessary if we're going to be serious about this job.
Create a Cut-and-Invest Committee charged with trimming waste and targeting investment	$11 B	Now, this is eliminating waste, fraud, and graft. Some other committee will come up with another eleven billion dollars in cuts these guys couldn't?
Eliminate all earmarks	$16 B	Hardly a new idea but one that Congress can't seem to steel itself to do.
Sell excess federal property	$1 B	I'm skeptical of government asset sales; it's a one-time fundraiser and if it's an asset worth having in the first place, the government will have to lease it back.
Reformed, simplified tax structure (one tier for corporate taxes, three tiers for personal income taxes) and substantially reduce deductions	$1,100 B	Reducing deductions is, effectively, a tax hike. The three-tiered progressive tax structure would be similar to the six-tiered structure in place now, so this isn't fundamental reform. As I've noted before, deductions today count more than marginal rates.
Raise gas tax gradually by 15¢ beginning in 2013	Not stated	I can think of no more inflationary tax than the gas tax, unless we were to institute a VAT. Initially, I disapprove.
Pay doctors and other providers less, improve efficiency, and reward quality by speeding up payment reforms and increasing drug rebates	Unspecified	I hate seeing doctors take pay cuts; plenty of docs out there aren't making mid- to high-six figure salaries and they have huge educational loans and overhead to deal with. Still, everyone takes a hit here. The "improve efficiency" is still something like the magic of reducing fraud and waste, but it's hard to argue that there isn't inefficiency in large medical facilities. That doesn't mean that people are idle there; it means that no one can figure out how to run things any more efficiently than they are. So at least some of this may be an illusion.
Pay lawyers less and reduce the cost of defensive medicine by adopting comprehensive tort reform	$ 4 B in 2013, increasing thereafter	I guess this will be news to the Commission: there are already caps on malpractice verdicts in most states. Turns out they don't have any effect on malpractice insurance rates and have done nothing to stop escalating health care costs, almost as if malpractice lawsuits have no substantial effect on healthcare costs. So this $4 billion in savings is also magic.
Expand successful cost containment demonstrations	Unspecified	Once again, it's the magic of cutting waste and fraud.
Require Drug Rebate Payments for name-brand drugs on Medicare Part D	$5 B in 2013, increasing thereafter	How about abolishing Medicare Part D altogether? The market will price out the drugs just fine, thank you very much, President Bush.
Identify an additional $200 billion savings in federal health spending	$200 B	As best I can figure, this is cuts in payments to hospitals and other non-doctor providers
Strengthen the Independent Payment Advisory Board (IPAB)		Unless I miss my guess, this is the entity that looks at claims from doctors, hospitals, etc., and adjusts them downward. This may well be redundant with the other medicare cuts. I am pleased that they're looking at medicare and medicaid spending cuts seriously at all.
Reduce farm subsidies by $3 billion per year	$ 3 B	A good idea anyway.
Ask federal workers to contribute ½ the cost (not 1/14th) of pension and retirement		Private employers are doing this and the government needs to follow suit.
End payments to states and tribes for abandoned mines.		We're doing what now?
Require Tennessee Valley Authority to impose transmission surcharge on electricity sales.		They're not doing this now? Southern California Edison does here. I've no complaints about my electric bill; TVA ratepayers can do this too.
Index all fixed-dollar user fees to inflation.		Well, duh.
Review, annually, whether the budget is on a sustainable path.		You would have thought that there would have been powerful political incentives to do this anyway, but no, that turns out not to be true. So I guess the government has to require itself to look in to this more than sporadically.
Allow Congress and the President to waive the requirements during years with low economic growth, unanticipated military conflict, or major disaster.		I'd be okay with that if it requires a super-majority in Congress to do.
Gradually move to a more progressive benefit formula by creating a new bendpointat the 50thpercentile and reducing upper replacement factors slowly over time, phased in by 2050		That sounds right -- if you have substantial income other than Social Security, you shouldn't get Social Security.
Increase retirement age by one month every two years after it reaches 67 under current law, meaning the normal retirement age would reach 68 in about 2050 and 69 in about 2075.		We might even go a little bit faster than that, especially later in the track.
Gradually increase the taxable maximum to capture 90 percent of wages by 2050		I've never understood why SSI taxes cap out at $106,000. If the basic idea behind progressive taxation is rich people pay more, why are we capping payments at all?

There's a lot of stuff in here that I think is either too ill-defined or abstract to be counted on as deficit reduction and savings I don't believe will be real even if the policies are implemented. But there has clearly been a resolve to make painful choices for the sake of reaching sustainability, balanced against a need to not shock the system too badly or starve little old ladies along the way.

What I'm calling it is a good-faith and serious response to the Paul Ryan proposal, and a useful next step in the process of actually cutting spending instead of just kind of being mad about the debt.

A Little Black Book With Me Poems In't

Should I admit that I took the time to listen to Pink Floyd's The Wall tonight? That I did it sober? Well, I did. I hadn't listened to the whole album all the way through since law school at the latest, so that's at least fifteen years.

Now, you're absolutely right to roll your eyes: The Wall is narcissistic, self-absorbed, and periodically juvenile. But it's also a brilliant piece of music. Really good orchestration and arrangements, really good use of the dubs and audio-dissolves, Roger Waters giving his all on vocals and David Gilmour giving the best guitar work of his career. And linked together in what turns out to be a coherent and viable, if not always blindingly obvious, arc of a story that rushes forward with a relentless momentum, which is how I found myself sucked in to listening to the whole thing instead of only one or two songs as I'd originally intended.

Another Brick In The Wall Part 2 is the famous song with the "We don't need no education" lyric, but Another Brick In The Wall Parts 1 and 3 are much more scary and musically interesting. You'll remember the other big hits, like Young Lust and Comfortably Numb. But the less famous songs -- Goodbye Blue Sky, Waiting For The Worms, Mother, and Empty Spaces -- are really, really good, especially in the context of the album's overall story arc. As to that narrative, I won't believe that life as a rock star sucks so badly that it drove Roger Waters insane, although the drugs may have played a part in that. And all the drugs may have unleashed some serious creativity, because the story arc holds together nicely from beginning to end.

By the way, did you know that Toni Tennille -- yes, of Captain & Tennille -- did backup vocals on The Wall?

Anti Sharia Amendment Enjoined

A Federal court in Oklahoma has enjoined certification of the passage of Measure 755, about which I and several others wrote a while back. If you haven't been keeping up with past episodes, Measure 755 would forbid an Oklahoma court from "considering or using" either Sharia law or international law, including treaties.

The District Court's opinion can be read here.  Judge Vicki Miles-LaGrange first finds a likelihood that the plaintiff has standing, and then finds a likelihood that Measure 755 fails all three prongs of the Lemon test. Bear in mind that this is a preliminary and prudential finding; the matter will be more fully briefed at a hearing set for November 22 when the State of Oklahoma will have an opportunity to brief and defend Measure 755 on its merits after some time to prepare more thorough arguments and briefs. Hopefully, this briefing will include declarations from the legislators who authored and sponsored the ballot initiative, but we'll see what it finally looks like.

I have also seen a lot of grousing that the challenge to Measure 755 was brought by a distasteful and weird group called the Council on Islamic-American Relations. For the record, CAIR is not an object of my praise or any sort of moral defense; I've no particular love for them. To the extent that CAIR's members are American citizens or people lawfully within the United States, they have the same rights I do to advocate whatever changes to the law they think are desirable and they need offer no further justification than their desire to speak. No one else is under any obligation to listen to them or to agree with them, and CAIR is so marginal and impotent an advocacy group that it may be effectively disregarded as a political force of any import whatsoever.

But CAIR is also not the named plaintiff in this lawsuit; the plaintiff is an individual American citizen named Muneer Awad, who is a Muslim living in Oklahoma. He does not like that the state is officially demeaning his religion and fears injury in that his will makes reference to Sharia requirements that a portion of his estate be distributed to charity, and therefore that Measure 755 would prevent an Oklahoma probate court from following those instructions. Whether Mr. Awad is a member of CAIR, or if CAIR is bankrolling the legal challenge, or if CAIR is just another one of the shouters from the sidelines, is unclear -- but also irrelevant. A legal argument is valid, or not, regardless of who makes it.

The standing issue is more interesting than the Establishment Clause issue. Because I think the Lemon test has been superseded by and subsumed into the endorsement test ("The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion," Lynch v. Donnelly (1984) 465 U.S. 668, O'Connor, J., concurring) the issue of whether Measure 755 violates the Establishment Clause is a slam dunk. It could not be more clear that Measure 755 singles out a single religion for especial disapproval.

The more interesting question is who gets to make that argument, and when, and how the Court can respond to it.

I think Mr. Awad likely has standing. A will is of no tangible benefit to the testator, whether the will is entirely secular or makes reference to religion in some way. But the will is of an intangible, emotional benefit to the testator, who acquires with the will the knowledge and assurance that his family, loved ones, and other people he cares about will be provided for after his death as he would want them to be. Like an insurance policy, what one buys with a will is peace of mind. Losing that peace of mind seems to me to be a tangible enough injury to convey Article III standing. So the disputant has standing, the dispute is ripe, and there is a substantial federal issue in the violation of the Establishment Clause.

But then I get to this issue. Mr. Awad's will makes reference to Sharia. So under Measure 755, an Oklahoma probate court would have to disregard those sections of the will referring to Sharia. But couldn't the will -- and thus the probate court -- order disposition of the estate to charity anyway? He doesn't have to write in a reason into the will at all, and it would be a simple thing for the court to say, "For whatever reason, the testator wanted 10% of his estate to go to charity, so 10% goes to charity." To the extent that he enumerates his reasons for wanting his estate disposed of this way, the Court could treat that text as a superfluity and simply ignore it.

Then there's the question of the way the Court approached the remedy. In the TRO ruling (again, which is only in effect for about two weeks) the Court enjoined the state from certifying the election return. I'm not at all sure this is the right remedy. Either the voters passed Measure 755 in accordance with Oklahoma state law, or they did not. That's the only thing the certification tells us. Whether Measure 755 is Constitutionally valid or not is a different question.

There is clearly no problem with the Court enjoining enforcement or enactment of Measure 755. It could remain on the books as a dead letter.

Personally, I see no problem with the Court striking Measure 755 from the Oklahoma constitution, because the Supremacy Clause provides that no state law may contradict the U.S. Constitution -- and Measure 755 violates the Establishment Clause of the First Amendment by virtue of its dis-endorsement of Islam. But it has to get in the Oklahoma constitution in the first place before it can be stricken. And the presence of even a dead letter on the books creates at least an insult to those who would have been condemned by the law. It was widely believed in Tennessee that the provision of the state's law forbidding atheists from serving in public office or on juries was unconstitutional and unenforceable -- but I still felt insulted by the state when I lived there; the presence of that law was an official reminder from the state that I was not quite a first-class citizen, even if there would be no tangible effect of that classification. So striking the law from the state's constitution seems appropriate to me.

I'm not entirely comfortable with the way this is going down. Procedure is as important just like substance, so while I've no quibble with the finding that there is an Establishment Clause violation, I wonder if the remedy here is correct. Because the nature of the injury here has not been shown to be concrete, and because the remedy is one which does not seem tailored to address the remedy, this comes close to being an advisory opinion.

It Was Just A Contrail

A contrail is a thin cloud left behind an object moving high in the sky. Typically caused by an airplane, rockets and meteors can cause them too.  Anything moving fast enough or which is heavy enough will cause the thin air around it to condense, making water vapor visible. These are quite common and most people, even in areas of the country where aerospace is not the primary industry, find them unremarkable.

Which does not explain why it seems the entire blogosphere -- particularly folks from Orange County and therefore with some bleedover into the right-wing blogosphere (credit where it's due; there is an update) -- went so suddenly nuts assuming that a perfectly ordinary contrail left behind a perfectly ordinary flight, which an educated guess identifies as U.S. Air Flight 808, from Honolulu to Phoenix. There are cool heads out there in the O.C., and others who have pointed out that this wouldn't be the first time an ordinary contrail has caused a panic.

If you're interested in the subject, learn more about contrails here. If you were having fun panicking, don't let anything I've said here slow you down. But no one is in any danger from U.S. Air Flight 808. This was not a mysterious missile. This website has an image of what a west coast missile launch looks like; notice how it is clearly visible from Inyokern, a small community 160 miles east by northeast of the Vandenburg AFB launch site. My own experience -- and I'm the sort of guy who regularly looks up into the sky -- was that I haven't seen anything remarkable up there for weeks since the last F-35 test flights. There is nothing to panic about, yet people seemed eager to panic and indeed, to politicize it. I wonder what sort of free-floating anxiety is out there that fed this silly, irrational panic.

Living A Lie, Not Developing Marketable Skills

When a pastor loses his (or her) faith, that's a real problem. Pastors may develop some marketable skills but apparently for some it's hard to market them, especially in a tough job market. I feel more than a little bit bad for these guys; they're kind of trapped in a job that makes them feel like hypocrites but have no real other way to provide for their families. I can't help but think this is nothing particularly new; I wonder how many people have been preached to by clergy (of any religion) who don't really believe what they're saying.

I Use A Laptop Often

Fortunately there are some things I only need to worry about with respect to comfort.

Now That's Progress

After $4,300,000,000 in Federal funds are received, plans will soon be laid for the first length of track in California's high-speed rail to be built in the Central Valley, thanks to Bay Area NIMBYs. Bay Area or Los Angeles area commuters apparently need relief to their traffic woes less than do people who need to get from the worst neighborhood in Fresno to the only bad neighborhood in Merced. These lucky seven Californians will, eventually, be able to accomplish this trip in twenty-one minutes or less (not counting time to load, unload, make safety stops, and to allow time for train attendants to don and doff their uniforms and take mandatory rest and meal breaks), all for the same price (after subsidies) as an airplane flight from Los Angeles to Houston. That is, when the tracks are eventually laid, which at the rate the California High Speed Rail Authority is proceeding with execution of this voter-mandated construction plan, I would expect to happen some time in September of 2023.

What He Said

When I don't write about something here, one of the reasons why is that I don't think I have anything new or insightful or useful to add to a particular subject. The subject of three Justices of the Iowa Supreme Court getting voted out of office because they ruled in favor of a right of same-sex marriage under that the Iowa Constitution's Equal Protections guarantee has just become such a subject.

Dan from Bleakonomy has occupied the field. And much more succinctly than I would have. I also want to extend to Dan thanks for writing the post about Oklahoma's Measure 755 which inspired me to produce not one but two posts on that same subject, posts with which I've had quite a bit of success with recently.

Instructor Ennui

There's a lot of bullshit involved in teaching. A lot of angst from students who can't seem to handle that they get questions wrong. A lot of paperwork and bureaucracy from the administration. A lot of claims of being liked by students who are obviously insincere. A lot of self-doubt about presenting material in a way that would seem to make it virtually impossible for anyone to do poorly but the awful spectacle of seeing it happen anyway. And for me, it means cutting off my time in the office, dealing with clients and their problems, a little bit earlier than the partners would probably prefer.

I came back from teaching tonight deeply dispirited about the whole endeavor. I just wasn't having any fun at all, even during a class with a fun subject. I felt this way last week, too, and thought it was the result of inadequate preparation. But this week I was prepared and I know I did well. Still, when I got home, I told The Wife that I wasn't going to take any more teaching gigs from anyone; it wasn't fun and wasn't worth the money or the frustration of putting up with the bullshit. I'd rather have been at home with The Wife and the critters, even if it meant less money. I'm up late reconsidering that -- but not very seriously.

This sort of thing can't be unique to my experience. It's not soul-crushing the way some other kinds of professional drudgery can be, but it was wearying to be up there facing a room full of rebellious college students who just plain didn't figure out the material and seemed to think that it was somehow not their fault. Which bugged me because, didn't I make the material interesting? Didn't I tell them what to look for when they studied and prepared their quiz answers? How do I deal with the fact that half my students probably don't belong in college at all but I'm not allowed to tell them that? Particularly for those Readers who teach adults, how do you handle this sort of thing?

Advice About Two Years Too Late

Matt Yglesias suggests that the appropriate response by President Obama to the setbacks he and his party just sustained is to withdraw to the White House and make greater use of executive powers -- to do things like appointing more judges, aggressively negotiate trade agreements with major trading partners, and using regulatory and priority-setting power to bypass Congress towards encouraging economic activity. In other words, he needs to stop being the Democrats' Congressional-negotiator-in-chief and start being the President.

You'll pardon me if I say, "I told you so." Nearly three years ago, I mused:

Personally, I think that legislative service is a relatively poor way to train someone for executive leadership. Legislative service is inherently a deliberative process. It involves seeking consensus and compromise amongst people who are more or less equals. Chairs of Congressional committees certainly wield great power, but they do so because they have the backing of their peers and therefore concentrate the power of the entire Congress into themselves, at least within their areas of speciality.

Being a legislator is great experience for learning how to make deals. It isn't a great way to learn how to delegate tasks, how to read peoples' abilities and how to pick amongst people for various jobs, how to set priorities. Executive power is taking the helm of an organization; it is not exercised by seeking consensus and compromise, but rather through personal charisma and the dissemination of a common set of visions, goals, and values. Ultimately, being President isn't about making deals, it's about taking charge. So I have to disagree with those among you who picked service in the Congress as the best qualifier for the White House. I'd have picked "Cabinet service" before "Congressional service." But that's just me.

Leaving aside a spelling mistake which I should have corrected, I stand by those remarks. Nor do I think I was particularly unique or insightful back during the campaign to observe that Barack Obama's very first experience as an executive would be as President of the United States. He was never Governor of Illinois, never ran any kind of an enterprise like a university, never even ran the law firms he worked in. Knowing what to delegate and what not to, judging the character and competence of subordinates and figuring out how much leash to keep them on, and finding the right advisers to filter extraneous information and get the important data where it ought to be are difficult things to do.

Which is why it's telling, and of mid-range importance, that so many Republicans became Governors this time around. They are the farm team for the 2012, 2016, and 2020 Presidential election cycles. In the meantime, it's interesting to see liberals pointing out that President Obama needs to stop being Senator Obama. But this begs the question: shouldn't he have been doing that all along?

Better Than Losing

I got notice today of my plaintiff's summary judgment motion being granted in a bitter property ownership case. Maybe this case isn't over yet, but lemme tell you all: I like winning.

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For Your Listening Pleasure

Jeff Beck and Joss Stone.

There's something quite nice about British musicians playing American blues.

Premortem 2010

Ten months ago, I made a few SWAGs about (among other things) politics. Those SWAGs included the following:

Foolishly, Democrats will campaign in 2010 against George W. Bush.  This will fail and result in gains by Republicans, but more in the House than the Senate.  Congressional Republicans will realize a net gain of only two or three seats in the Senate, leaving the Democrats still firmly in control of that body and reviving talks of abolishing the filibuster.  But, net gains in the House of Representatives will be such that the Democrats' majority in the lower chamber will be roughly ten seats and Republicans will optimistically talk of re-taking the House in 2012.

* * *

A reconciled health care "reform" bill will not be passed out of Congress until March or maybe even early April.  Its effect will be to very moderately increase taxes on middle-class Americans, only negligibly affect their actual health care options, and substantially inflate both the governmental deficit and the profits of enterprise-level health care providers.

* * *

California will increase sales taxes to 10.5% or higher, resulting in the highest sales tax in the nation.  Despite this, functionally all incumbents in the Legislature eligible for re-election will be re-elected in November and the Democrat nominee (who right now looks like Jerry Brown) will win the Governorship.

My prediction for California is much closer to what has actually happened than what looks like is about to happen at the Federal level.

California is indeed poised to send back functionally all non-termed members of the Legislature back to Sacramento; those seats for which the incumbent is termed out appear poised for retention by the incumbent's party. There may well be no shift in the partisan makeup of the California Legislature at all.

Federally, I made my prediction believing that the bad general economic conditions present at the end of 2009 would not persist and be mitigated somewhat. I hoped that would be true. Now, where I predicted a gain by Republicans of two or three seats in the Senate, it looks more like seven. That doesn't leave Democrats firmly in control of that body, but they will still be the majority.

The House, however, appears poised for a reversal of control. Right now, Democrats have 255 seats, Republicans 178, and there are two vacancies. The magic number is a net gain of 39 seats for Republicans. My predicted gain of roughly ten seats will be far exceeded; the best predictions available is a shift of fifty-five (!) seats, which would be enough for the GOP to re-take the Speaker's chair.

I think what happened was that the election of Scott Brown earlier this year gave everyone a test of the political waters. Much like I thought, the Republicans found that running a campaign against President Obama and in particular health care reform was potent stuff; the Democrats found that running against President Bush was a non-starter. Why they ever thought to run against Bush during mid-term elections while they controlled the White House is absolutely beyond me.

What happened was that Democrats found that their brand had become toxic and they had no target to point to and say, "But we don't suck as bad as them!" anymore. The best they came up with were the Not-Ready-For-Primetime-Players like Sharron Angle, Christine O'Donnell, and Joe Miller -- but in states with larger populations, even the more conservative of Republican nominees -- Rick Rubio, Pat Toomey, Mark Kirk -- had enough experience and polish to give lie to the idea that cosnervative ideology necessarily means silliness.

I see no reason to think, however, that this election represents an embrace by the electorate of "Republican ideas." Rather, it is a rejection of "Democratic ideas," specifically health care reform. If there is going to be a common thread in the stories at the House level, it will be that Democrats from marginal districts who voted for health care reform get thrown out, while Democrats who can say that they bucked their own party on this one issue stand a reasonable chance of hanging on to their seats.

The result of this will be that the Republicans in office for the 112nd Congress will believe that they have been rewarded for being "The Party Of No" and will double down on doing nothing. The chances that the Obamacare bill will actually get repealed are functionally nil -- the President still holds the veto pen, even if a repeal makes it through the Senate. But there is a reasonable chance, even a probability, that Obamacare will be whittled back incrementally. The political football will be the individual mandate. This strikes me as odd -- the Republicans will realize electoral gains and make political hay during the next cycle, by fighting for the right of people to not have health insurance if they don't have the money to buy it. But there you have it.

Downballot, at least here in California, the real prize is redistricting. Lots of people are focused on Prop. 19, which I predicted a while back and continue to believe will be a very close vote. Right now, I'm pessimistic about whether it will pass. But the big issue is Prop. 20 and Prop. 27.  In the last election, the voters passed Prop. 11, which delegated legislative redistricting to a bipartisan panel of 120 people, 40 Democrats, 40 Republicans, and 40 independents. Prop. 27 would repeal Prop. 11.  Prop. 20 would extend the power of the panel to Congressional districts as well. I have long thought that the heavily-gerrymandered districts are at the root of the political polarization which has effectively paralyzed California's fisc.

This will be somewhat mooted if Prop. 25 passes -- this would reduce the requirement for passage of a budget out of the Legislature from two-thirds to a simple majority. The result of this would be to eliminate the only power that the minority party in the Legislature has, which is to block passage of the budget. Since the 1950's, Democrats have been in charge of the Legislature and for most of that time, Republicans have used the two-thirds rule to slow or mitigate the creep of tax increases which Democrats would have implemented to pay for the expansion of government services that they nevertheless pass. Since Republicans will not allow taxes to be significantly increased to pay for this, the Democrats have financed these things by selling them piecemeal to the voters directly through bond measures and had to content themselves with only incremental increases in taxes and hoping that inflation would catch up with the bonds.

How long could such a thing be sustained?  Fifty-six years, as it turns out, until a national economic crash, hitting particularly hard here, caused existing revenue to drop through the floor.

So these are the big issues and the big forces I see at play right now. I want the Republicans to do better in Sacramento; there is little doubt in my mind that state taxes are already at such heights that California's economy suffers from a drag imposed by the government. This means we need to keep the two-thirds rule and try to fashion more logical and balanced districts in the future so that the Legislature is not run like an old-style Russian Soviet. At the Federal level, I'm not a fan of Obamacare and wouldn't mind seeing it repealed.

All in all, I find reason to be contented and moderately optimistic about the elections today. I don't relish the idea of gridlock and I would like it if the Republicans actually stuck their necks out and proposed actual policies instead of simply saying "Let's go back to the way things were in [mumble mumble]." The gold old days under George W. Bush weren't really all that good, especially from a fiscal perspective. Still, I'm encouraged to see that they are at least paying lip service to the idea of watching our collective money, and I can at least hope, perhaps forlornly, that this ethic by the voters will trickle down to the state level here such that we see institutional steps to keep California's finances in check retained and strengthened.

Quick Memo

TO:  Carl Paladino, candidate for the office of Governor of New York
FROM:  Burt Likko, the Transplanted Lawyer
DATE:  November 1, 2010
RE:  Your recent photograph at Halloween party

Mr. Paladino:

While reading one of my favorite blogs (linked above in the subject line), I saw a photograph of you at a Halloween party in which you seemed to be allowing your picture to be taken next to a man wearing blackface. Racial politics being as complex as they are in today's ever-changing social and cultural milieu, it occurred to me that you may have been confused and (perhaps because it appears there may have been moderate amounts of alcohol being consumed at this party) thus allowed your politician's natural reserve of inhibition to ebb. Because I've no particular love for Andrew Cuomo, I thought you might like to know that this photograph could tend to make people think of you as something of a douche bag.

This reminded me that there are decision-making matricies and flowcharts which can assist in handling difficult and nuanced situations like this. I have reproduced the relevant portion of the flowchart to the right in this memo. Suffice to say that I advise against allowing future such photographs to be taken, and to issue an appropriate explanatory statement at your earliest convenience.

Your apparent intoxication, squint, and tongue sticking out of your mouth do not add luster to this incident. However, the primary concern is the fact that you allowed visual evidence of your presence at a party where someone was wearing blackface. While perhaps not as problematic as being photographed while wearing a Waffen SS uniform, this is still well within the category of "pretty bad." Hopefully, this will assist you in the future should you find yourself "on the spot" and need to make a snap decision. Good luck tomorrow (you'll need it) and in your future electoral endeavors!

-TL

Cosmos

I've been watching Cosmos, the science miniseries series that originally aired on PBS back in 1980. You can see them all for free on hulu. Some of the science is old news now, the graphics and the hairstyles and the clothing are definitely dated. But it still holds up as an enjoyable way to spend your time.

The stagings of historical events hold up and help bring to mind some idea of what the progress of science must have been like to the people of the periods when it happened. The soundtrack by Vangelis remains beautiful, even if electronic music has advanced considerably since the Eighties.

Most of all, there is the writing and narration of Carl Sagan. Sagan was a remarkably effective ambassador for science to the popular world. Cosmos stands as a brilliant paean to the joy of knowledge, learning, clear thought, and most of all the power of science. If the science is old news now, it makes no bones about that -- the science was new when the series was made but Sagan was clear that he fully expected the work of future generations to surpass what he was describing. At the end of the day, he describes science as a process, as an attitude. And it is an attitude full of awe, wonder, hope, and joy.

Sorry About This Folks

Thanks to a particular commenter who cannot seem to restrain his contempt for my failure to share his paranoia concerning Muslims while commenting on posts here, I have enabled comment moderation.

I do not wish to ban this commenter from the site, because from time to time he raises good points which are worthy of consideration and respect. But I don't think users should have to wade through the name-calling and insults in order to find these points. Sadly, Blogger will not allow me to do this selectively for individual users, which suggests that I ought to once again consider migrating the blog to somewhere that gives me a little more administrative flexibility, something that I have not found the time to do and which I do not relish doing.

I will approve and publish all comments of substance, regardless of the viewpoint expressed therein. Comments which, in my sole discretion and exclusive judgment, contain trolling, insults, abusive language, or invective will be edited so as to remove the inappropriate content thereof and only the substantive, constructive, or useful content will see the light of day. This also means that if your comment does not relate in some discernable way to the topic of the post, I will not allow it to be published.

I choose to not practice viewpoint discrimination in exercising my power as administrator of the blog. That does not mean, however, that this is an open forum where anyone can say whatever they like. As I've said in the FAQ, constructive, factual, and interesting disagreement is welcome -- trolling is not. I am not the government and therefore I am not bound by the First Amendment and I have not created an open forum. Just as I choose to not censor viewpoints other than my own, I also choose not to allow people to shoot insults at will.

Say what you have to say -- on the topic at hand. Mind your manners. I know that 95% or more of the Readers here don't need to be told that. If you are in that number, this is not aimed at you, and I regret the inconvenience.

A Few More Thoughts On Sharia Law

Today's Fish Wrapper has a piece today on Oklahoma's Measure 755, about which I wrote a few days ago. One of the things that I found important to note was the fact that the sponsors of the measure could not point to a single instance in which an Oklahoma court had actually applied Sharia law. The Fish Wrapper picked up that ball and ran with it:

Backers of the amendment have cited only three cases that they contend show the threat of Sharia law. In each case, though, the courts gave no special dispensation for Sharia law. The activists say the judges erred by treating Muslims as they would other religious groups because Islamic law does not give women the same rights as men.
In the first case, a Maryland court upheld a custody order from a Pakistani court that was decided under Islamic law. Judges in the U.S. are required by federal law to uphold foreign custody orders if they comply with American legal values, but Rodgers argued that no Islamic court could ever meet this criteria.
In the second case, a Texas court allowed a couple to mediate a property dispute with a private arbitrator. That arbitration was conducted under Islamic law.
It is not unheard of to have religious law dictate private arbitrations in the United States — some observant Jews arbitrate disputes in a rabbinical court — but Rodgers contended that Muslims should be treated differently because their legal system is inherently flawed.
In the third case, a New Jersey judge ruled that a Muslim man could not be guilty of raping his wife because, due to his religion, he believed that a woman is required to have sex with her husband. An appellate court swiftly overturned the ruling, noting that it conflicted with long-established 1st Amendment jurisprudence that holds that religion does not excuse criminal conduct. The appellate court noted that the same rationale was used, erroneously, to justify polygamous Mormon marriages in the 19th century.

I've found one of those cases. It's called Qaddura v. Qaddura and it's a family law dispute from Texas. Rola and Jamal Qaddura got married in 1993. They had a religious ceremony first, in which an "Islamic Marriage Certificate" was signed and it included a dowry of $40,000 cash, payment of which was deferred, and a 1/2 interest in Jamal's house. An official marriage certificate was issued by the state of Texas a week later.

Six years after the marriage, Rola filed for divorce. She claimed the "Islamic Marriage Certificate" had the legal effect of a prenuptial agreement and should be enforced by the court to the effect that $40,000 and half of the house should be paid to her before the marital estate was liquidated and divided in half. Jamal said that the "Islamic Marriage Certificate" was induced by fraud and therefore was void.

The divorce court said in effect, "Dowries are contrary to public policy in modern-day Texas, and therefore we're going to treat this document as a nullity. Liquidate the entire estate and divide it in half equally." Meanwhile, primary custody of the kids was awarded to Rola. So each side got one big issue in their favor and one big issue against them. Rola's response to this was to file an appeal on the dowry issue, and then to sue Jamal and his brother for hiding assets. Jamal then sued Rola and her parents for endangering the children, which would have brought the custody issue back in play.

At this point, the case doesn't look all that different than any other nasty divorce that you read about in appellate case law -- this is Rich People Behaving Badly.

At some point, someone decided that the nastiness had gone on long enough and the dispute needed to come to a full and final end. An appeal to religion was made and Rola, Jamal, Jamal's brother, and Rola's parents all signed an "Islamic Arbitration Agreement," in which they agreed to submit the global dispute to the "Texas Islamic Court," which appointed three imams from three local mosques to resolve the dispute, and instructed the "Texas Islamic Court" to apply Sharia law to their decision-making process. The imams then said that they were going to re-examine the order of custody in favor of Rola and also going to re-examine the applicability of the dowry agreement -- so Rola had custody of the kids at risk again, and Jamal was at risk of having to pay more money to Rola again.

No one is happy with this, so they went back to the Texas courts with a dispute about the scope of the "Islamic Arbitration Agreement," which found its way to the Court of Appeal. The appellate court said, in essence, "This is your dispute, you can do what you want with it. You picked the arbitrators, who are these three imams. You picked the forum, which is this 'Texas Islamic Court' thingy. You picked the law that the arbitrators would apply, which is Sharia. You defined the scope of what these arbitrators would decide, which was everything. What we do is enforce contracts. You made a contract to give the whole dispute to the imams, so we're going to rubber-stamp whatever decision they make, even ones that reverse prior decisions by the trial court, unless you can show us a really good reason why we shouldn't, and you haven't done that yet. Go, now, arbitrate your divorce, and live with the result of your own decisions."

Which seems like exactly the right result to me. Unless a compelling governmental interest is subverted by what happens in the Sharia arbitration -- say, Rola is assumed to be a liar or not allowed to testify because she's female, thus violating the Equal Protections Clause -- the arbitration agreement should be enforced like any other contract.

The New Jersey criminal case looks like the trial judge made a mistake (probably as to interpreting the intent element of the crime of rape) but the appellate court's ruling seems right to me. All's well that ends well here, that's why we have appellate courts, and the law is clearer now. Note that the final and binding decision was made without regard for Sharia.

The Maryland custody case I haven't found. It seems as if the dispute about the case, if not necessarily within it, is about whether a Pakistani court can possibly comply with American legal values. I've found some differences in Sharia law to American legal principles:

• In Sharia, there is no separation of church and state. The government, individuals, religious institutions, and corporations are all equally subordinate to the will of Allah. This is a significant contrast with the First Amendment and the concepts found therein.
• Procedurally, the distinction between civil and criminal law is blurrier as compared to English common-law systems. Criminal prosecutions are initiated by the victims, not by the government. The victims have a voice in determining the punishment of a convicted criminal, but they are reminded by the court that the Koran requires Muslims to show mercy, temperance, and justice in so doing. In our system, of course, criminal prosecutions are the exclusive province of the state; any input from victims is ultimately advisory in nature.
• Individuals are held responsible for their own actions but not those of others. American legal concepts like agency, inducement, detrimental reliance, and respondeat superior are therefore substantially diminished in Sharia.
• The remedies for a particular case are not delimited by the law before judgment is rendered. A Sharia judge has great discretion to craft a remedy in a particular case in such a manner as to encourage the future behavior of all the parties, and of society in general, to act in harmony with the will of Allah; balancing that, when need be, against the idea of proportional justice ("the punishment should fit the crime"). Contrast that with limitations on the scope of civil contract and tort remedies, particularly punitive damages, and the limitations on availability of equitable relief found in U.S. and Commonwealth courts -- and with determinate sentencing, "three strikes" laws, and structured parole eligibility for criminal cases.
• There seems to be no right to a jury trial, or even a concept of a jury. This is not as important as it may seem at first blush, because in an arbitration setting in a U.S. court, one must by definition waive one's right to a jury trial.
• Social and family arrangements are to be treated with great caution because the presumption is a family is the way it is according to the will of Allah; therefore, a court should alter that structure only when there is a powerful and compelling reason to do so. This is different than the "best interests of the children" concept which is the overriding policy goal of most American family law.

With this last issue, I can see an argument going either way with regards to a U.S. court extending full faith and credit to a custody decision of a Pakistani court. If the Pakistani court relied on the status quo ante presumptions within Sharia, and ignored the interests of the children, then the U.S. court may need to re-examine that issue independently.

I haven't found any particular Sharianic statement to the effect that women cannot be witnesses or cannot initiate legal action, that they are presumed to be untruthful, or that they are in any formal sense of the word inferior to men when appearing before a Sharia court. To the contrary, the idea that everyone is equally subordinate to the will of Allah seems to suggest that a woman is equal to a man in Allah's eyes and therefore should be treated as a man's equal before a Sharia court. If that winds up being true in practice or not is a different question.

So yes, there are some significant differences between Sharia and U.S. law. But again, there is little here that seems so awful it can't be tolerated in a private arbitration agreement. And as a practical matter, the only way a U.S. court is going to deal with Sharia is by way of looking for substantial due process violations when it is asked to compel arbitration or confirm an arbitration award, or when it is asked to confirm and enforce a previous award of a foreign court pursuant to a treaty obligation or the Full Faith and Credit clause.

If Adams And Jefferson Had TV

I do so enjoy the Reason Foundation's videos -- they put things in perspective. Like this historical take on what has seemed like a remarkably dismal* election cycle:

* Not "dismal" for Tuesday's anticipated results, which I view as a mixed blessing overall. I say it's "dismal" because of the low quality of the candidates, the absence of meaningful policy discussion, and the sleaze and content-free emotionalism.

Men Sometimes Lie About Sex, You Know

A breaking political "sex scandal" on Gawker.com is an article written by an anonymous (or barely-so) man who claims to have had what he calls a "one-night stand" with Christine O'Donnell is not one that I would credit. The fact that the scandal is being released right now, the weekend before the election, makes it almost indisputable that it is politically-motivated, to no end that I can ascertain given that O'Donnell is polling so badly and her campaign appears to be destined to go down in flames. Also note that the man in question was apparently paid cash money for his story -- something in the "four figures." Ooh. Aah.

Because my analysis crosses the line into the vulgar at one point, the rest of my take on the story comes after the jump. Suffice to say, if you want to skip my analysis, the story has two major holes that I found with only one read-through and minimal investigation, I don't believe it and neither should you. If you live in Delaware nothing in this story should affect the way you plan to vote for Senate -- if you liked O'Donnell before, you should still vote for her; if you liked Coons before, you should still vote for him. After the jump, then, the details about why I don't believe this crap for a second.

More After The Jump -->

Troll Food

Normally, the right thing to do with a troll is ignore him. (Pretty much always a "him" rather than a "her," and it's a good bet that it's a "him" who doesn't have a girlfriend.)

If you give feedback and attention to a troll, he'll come back for more with even nastier abuse and less to contribute to a meaningful conversation. Having suffered a bit of trolling myself over at LOOG, not responding was something of an effort of will because ignoring someone who taunts you is frustrating. But the rule, and it's a wise one, is "Do Not Feed The Trolls."

I put up with some hostile comments here, if the commenter has something substantive to say within even a generally abusive message. Content-free invective is subject to censorship by me through the deletion of comments, and if repeated, bannination from the site. I try to tell those with hot tempers when they are approaching the line in comments, and that generally seems to work; I've not banned anyone and I haven't deleted a comment (other than true spam) for at least eighteen months now.

So just in time to cheer me up after trolling on my cross-post, Radley Balko found another way. He fed his troll. He fed his troll notes. Whether you agree with Balko's politics or not, this evisceration of a troll is nine out of the ten kinds of awesome. (He misses only on Awesome #7, "Sexually Arousing.")