Category Archives: Judicial

And Now Back To Our Regular Program: Post Kavanaugh Infrastructure Week

Senatorial candidate/incumbent Dean Heller (R-NV) was pleased to tweet Justice Kavanaugh was confirmed.  Not that the confirmation was a major surprise.  The Senate Judiciary Committee Republicans didn’t want to investigate his background, the White House didn’t want to investigate his background, the Chief Justice sat on complaints arising from his background [WaPo] and the pundit class was ever so pleased to have a “dramatic” confirmation to cover.  There were other elements which should have come as no surprise either.

The newspapers and broadcast media played along with the “controversy.”  Was it “he said, she said?”  What were women thinking? What were Trump-Women thinking?  Was he going to be the swing vote on challenges to Roe v. Wade?  Not too much ink and precious few pixels were expended describing his position on workers’ rights, on environmental regulations, on human rights, on much of anything other than the abortion issue.  Yawn.  Those more complex issues require deeper reporting and far more depth in explication and they don’t sell advertising.   Once more we’re reminded that the general public is not the first audience for television and print media business operations — it’s the advertisers.

Therefore, why would anyone be surprised the media aired and printed GOP bombast about “paid protesters,” and “mobs” of angry people?  There has always been a double standard at work in this realm.  The Status Quo is male, business ownership oriented, quaffs its scotch and water or sipping whiskey beside polished bars and inside elegant doors, and buys advertising — or knows someone who does.  The cameras will follow the freest spirit clad in the most outrageous costuming for a protest occasion, while those dressed more conservatively aren’t often in the frame because they don’t “tell the story.”  Or, at least not the story the advertisers want to tell.

Women have known since the era of the suffragettes that men are “passionate,” while women are “hysterical and emotional.”  If a person isn’t sure about this take another look at Serena Williams’ protest of an official’s call which may very well have cost her a championship match.  Women have known all along theirs is not the story the Status Quo wants in the headlines above the fold, or leading the broadcast.  The numbers of women who remember a time when all the ‘shelter’ magazines advised them to give up their jobs so returning soldiers could be assured of employment and a comfortable ‘nest’ at home are dwindling, but the memory is still within a life span.

Viewers watch marching neo-nazis with tiki torches, chanting “Blood and Soil,” while sporting their tidy white polo shirts and khaki trousers.  Gee, they don’t give the general impression of an “angry mob.”  It’s only when the cameras move closer to the faces that the hate is visible.  Compare the visual to the preferred camera target in a contemporary protest.  Once the march leaders are shown the cameras seek out the most eye-catching characters.  They usually don’t have that white-washed polo shirt look.  They are often students who don’t own more than one suit, if that, and certainly don’t want to risk getting really good clothing messed up during the inevitable police action which could ensue.  So, it’s jeans and T-shirts/jackets compared on screen to polo shirts and khakis.  No matter the jeans and T’s are defending 1st Amendment rights by exercising them, as the khaki klan seeks to impose white supremacy on a diverse country.  But, what about “the men?”

Once more the media allows the big players to frame the game.  If the #MeToo movement has gathered support and seems to be adding adherents and allies, then what might the Status Quo do to counter?  This week was a classic.  Elite, rich, elderly white males stood before us crying (and whining) about men being the victims of modernity.  However, this whine has been boiling for a long time.  Consider the continuous complaints of the Rush Limbaugh’s of the airwaves with their moaning about ‘feminazis” and how a real American guy can’t swat Mary Jane’s fanny when she steps into the garage — how a real man can’t wolf whistle at all the Mary Jane’s who have to walk past a construction site — how real men can’t catch a break because of all the women in the workplace who stifle the man’s competitive spirit.  Of course, real men don’t feel the need to swat Mary Jane’s fanny in the garage; they don’t need to wolf whistle; and they control most of the management positions in corporate America.  This isn’t news.

When all else fails the right can be assured the old anti-Semitic ploys will work.  If all the canned ham look-a-likes (Karl Rove, Rush Limbaugh, etc)  don’t manage to put a major dent in the image of protesters who don’t care for sexism and misogyny, there’s always the “paid protester” line… in this case George Soros who makes a convenient stand-in for the old anti-Rothchild propaganda of an earlier era.  The old double standard works here as well.  The Tea Partiers were “Real America.”  The Occupy Wall Street protesters must have been paid.  The contemporary protesters, mostly women last week, must surely have been paid — according to the elite, rich, white, males who celebrated ignoring them.

Will this, the press asked, cause a closer horse race in the mid-terms?  There is absolutely nothing the press seems to like more than a horse race, a sporting event, anything which will allow the punditry to pontificate on sports cliches like “momentum.”  Spare me. All the press has to work with are general, national or statewide, polling.  It does not have access to internal, private, number crunching performed on behalf of the campaigns themselves.  Most individuals who have been “in politics” for more than a school committee race know the truth of the O’Neill Maxim: All politics is local. 

Besides the “big” stuff the cable channels like to cover, there are better questions which they can’t answer because they just flat out don’t have the resources to do so. For example, they don’t have much of a handle on “candidate fit,” or how the specific candidate fits the local electorate.  They don’t have access to local politically active organizations which do phone banks, walks, and other services for campaigns. Nor do they have a way to gauge the effectiveness of local politically related leadership in social and other organizations.  The “media” may have a 35K view of a national issue, but there’s plenty of cloud cover before it sees what is going on in Ward 4 of Congressional District 3’s race. Not that we should ignore the media reportage, but we do need to be cognizant of how limited it is.

There’s the post hoc ergo procter hoc problem.  Even after an election the media may proclaim that some national issue had “an effect,” while underneath that “effect” may very well be the fact that Candidate X launched a full throat-ed ad buy, along with a deluge of phone bankers, combined with a legion of precinct walkers in the last week.

Thus,  for those who have survived another Infrastructure Week of the divisive, deflective, dumpster disaster which is the Trump Era,  there are mid-term elections which will be determined by who votes for whom.

Who has the best get out the vote plan? Who executes that plan best?

Who has the better candidate who best fits the district or state? Who executes the campaign best?

Who just flat out works harder to get in office or stay that way?  Who didn’t let the Outrage du Jour distract them from campaigning on issues near and dear to their constituents hearts — regardless of the media tendencies, press proclivities, and advertisers demands.  Who kept their eyes on the prize when others were distracted by double standards and double vision?

When we vote we win. That’s all there is to it.


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Filed under Heller, Judicial, media, media ownership, Nevada politics, Politics

Robert Jackson: Links and Speeches

It’s nice when cable TV actually IS informative, as when DAG Rosenstein put his knowledge of Robert Jackson on full display.  There’s an entire archive of Jackson’s speeches at the Robert H. Jackson Center.  The speech many people are looking for at present  is the 1940 address concerning “the Federal Prosecutor.”

The Federal Prosecutor was one of Jackson’s most significant speeches made as the 57th United States Attorney General. Delivered during the Second Annual Conference of the United States Attorneys, the speech outlined the duties and role of the federal prosecutor and more importantly laid out Jackson’s vision for their ethical and proper conduct. []

The full text of the speech is located HERE.  (There is also a PDF transcript version)

The Department of Justice also maintains links to Jackson’s more important speeches listed by date and event, though not by title.  There is much to learn and discern from Justice Jackson’s writings and speeches, and the Federal Prosecutor is as good a place to start as any.

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Filed under Judicial, Justice Department, Politics

Obstruction By Blue Slip: GOP assault on Federal Courts

Heller Blue Slip

Senator Dean Heller’s (R-NV) slip is showing, or rather it isn’t showing up. President Obama nominated Ann Rachel Traum to the Federal District Court (Nevada) on April 28, 2016.  So, where’s the blue form from the Senator’s office indicating the Judiciary Committee should move forward with this nomination?

One theory has it that not only are Senate Republicans blocking a Supreme Court nomination but they’re doing it down the line, right down to the overworked, understaffed federal district courts level.

“There are lots of GOP senators doing this. Sen. Dan Coats (Ind.) hasn’t turned in his blue slip for his judicial nominee, Myra Selby. Sens. Richard Shelby (Ala.) and Jeff Sessions (Ala.) haven’t turned in their blue slips for their nominee, Abdul Kallon. Sens. Lindsey Graham (S.C.), Tim Scott (S.C.), Dean Heller (Nev.), Richard Burr (N.C.), Thom Tillis (N.C.), Pat Toomey (Pa.) and Rand Paul (Ky.) haven’t turned in blue slips for their nominees, either. And Senate Majority Leader Mitch McConnell (R-Ky.) hasn’t turned in his blue slip for his nominee, Lisabeth Hughes.”  [HuffPo]

It isn’t like the current nominee isn’t qualified. The resume is remarkable:

“Anne Rachel Traum is a Professor of Law at the University of Nevada-Las Vegas William S. Boyd School of Law.  She is currently on leave from the law school and serving as Special Counsel in the Office for Access to Justice at the United States Department of Justice.  Professor Traum joined the University of Nevada-Las Vegas William S. Boyd School of Law faculty in 2008, and she has served as the Director of the Appellate Clinic since 2009.  She also served as the Associate Dean for Experiential Legal Education from 2013 to 2015.  From 2002 to 2008, Professor Traum served as an Assistant Federal Public Defender in the Federal Public Defender’s Office in Las Vegas, Nevada.  She served as an Assistant United States Attorney in the United States Attorney’s Office for the District of Nevada from 2000 to 2002, while on detail from the Environmental and Natural Resources Division of the United States Department of Justice, where she worked from 1998 to 2000.  She began her legal career as a law clerk to the Honorable Stanwood R. Duval, Jr. of the United States District Court for the Eastern District of Louisiana.  Professor Traum received her J.D. Order of the Coif and cum laude from the University of California, Hastings College of Law in 1996 and her A.B. with honors from Brown University in 1991.” [WH

This obstructionism is egregious on so many levels.  Politically, it’s the equivalent of a toddler’s temper tantrum – if we can’t have exactly the courts we want then we don’t want any.  This, in turn leads to the next layer of political idiocy.

It doesn’t do to complain about the time and expense required to litigate cases and at the same time keep courts short handed such that they cannot schedule hearings on a timely basis. This affects both plaintiffs and defendants in both civil and criminal cases.  Nor, are we merely speaking of the vacancies at the top of the judicial roster.

“While Senate battles over nominees to the Supreme Court and appeals courts draw more headlines, the less-noticed openings are increasing workloads and delaying trials in federal courts that take in hundreds of thousands of cases a year — compared with the 80 or so cases heard by the nation’s highest court.

Of 673 U.S. district court judgeships, 67 — or 10 percent — are vacant under President Obama, nearly twice as many as at this point of Republican George W. Bush’s presidency and 50 percent higher than at this time under Bill Clinton (D) or George H.W. Bush (R), according to data kept by the Administrative Office of the U.S. Courts.

The number of federally designated district court “judicial emergencies” — where seats carry particularly heavy caseloads or have been open for an extended period — is also roughly double what it was in May 2008 and May 2000, according to the administrative office.

Heavy caseloads in some places slow resolution of everything from commercial disputes to workplace discrimination claims to federal regulatory challenges, in which district court rulings are often the last word because most are not appealed.” [JDnom] (emphasis added)

Consider this last paragraph carefully.  “Commercial disputes” is one category worthy of attention – someone, somewhere, who is engaged in interstate commerce may not be getting paid in a timely fashion because there is no judge with docket time available to hear the case?  Someone, somewhere would like to challenge a federal regulation, but hasn’t the “float” required to engage in protracted litigation because of the docket backlog?

We do have a constitutional guarantee of a “speedy and public trial,” under the provisions of the 6th Amendment, but this applies only to criminal prosecutions – not to those commercial disputes, discrimination claims (and defenses), regulatory challenges, and other civil litigation.  We have a backlog, and it’s getting deeper:

“Combined filings for civil cases and criminal defendants in the U.S. district courts decreased by 28,836 (down 7 percent) to 361,689. Terminations once again held steady, declining by 2,634 (down less than 1 percent) to 347,828. Because filings exceeded terminations, the total for pending cases and defendants rose by 12,268 (up 3 percent) to 438,808.” [] (emphasis added)

Pending civil cases are reported up by 5%, to 340,925 nationwide.  And, still the Senate Republicans will not act.

Senator Heller, Where is your blue slip?

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Filed under Heller, Judicial, Nevada politics, Politics

Cases of Interest in the Pipeline

 Gavel If we can tear ourselves away for a moment from the Pelagian morality play, or circus act, on stage in Kentucky, there are some other interesting cases which are winding through the U.S. courts.

Shapiro v. McManus:  A case brought by a Maryland Republican who believes the Democrats gerrymandered districts after the 2010 census.  What make this interesting is that Shapiro is contending his case should have been heard by a three judge panel – which would put it on a fast track to the Supreme Court. [ScotusBlog, Baltimore Sun]  Those watching voting rights and political cases may want to keep track of this one.

Arizona v. U.S.:  The immigration issue, and the legal status or protections related thereto, is central to this long running case based on the Papers Please Arizona law otherwise known as SB 1070. The case is back in the news:

“Challengers of Arizona’s landmark immigration law failed to show that police would enforce the statute differently for Latinos than they would for people of other ethnicities, a judge said in a ruling that dismissed the last of seven challenges to the law.

The ruling could signal the end of the case and gave a victory to backers of the law, which was approved in 2010.

In her order Friday, U.S. District Court Judge Susan Bolton dismissed the challenge and upheld provisions that were previously ruled on by appeals courts.” [LA Times]

Stay tuned.

Whole Women’s Health et al v. Cole:  The case has been filed by Planned Parenthood supporters in Texas challenging the “unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”  (pdf)  The petition raises some crucial questions and is highly recommended reading. (h/t Scotusblog]

Okay, if we really can’t avoid the Rowan County clerk’s exercise in liberum arbitrium, ( the moral strength of man’s will when steeled by asceticism is sufficient in itself to desire and attain the loftiest ideal of virtue ) then there are some interesting and informative articles available which go beyond sideshow reportage:

  • Marty Lederman “Further strangeness in the Kim Davis Case,” Balkinizaton blog September 7, 2015.  Mark Graber “A Different Take on Kim Davis, Balkinization, September 5, 2015.
  • Lyle Denniston “A New Legal Cloud over same-sex marriage in Kentucky,” Scotus Blog, September 3, 2015.
  • Charles J. Reid, “No Refuge in Scripture or in Law,” Huffington Post, September 5, 2015.
  • Garrett Epps, “The fatal flaw in Davis’s appeal,” Atlantic, September 2, 2015.
  • Brian Tashman, “Five Bizarre Arguments Kim Davis’ Supporters Have Used To Defend Her Lawbreaking,” Right Wing Watch, September 4, 2015.

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Filed under abortion, conservatism, Immigration, Judicial, Voting, Women's Issues, Womens' Rights

#BlackLivesMatter and the misappropriation of a Theme?

black lives matter

Sam Dubose. Sandra Bland. Freddie Gray. Eric Garner. Michael Brown. These names are now a part of the rallying cry of the Black Lives Matter movement. Not famous for their lives. Tragically, they are famous only in wrongful death.” [HuffPo]  and altogether too many others.

It’s been interesting to watch the white American reaction to the #BlackLivesMatter movement, and the range of those reactions.  From the white’s-right end of the spectrum came the #AllLivesMatter theme – including, we presume, those of white officers being charged (or remaining uncharged) for their excessive use of force or poor professional judgment.  No sooner did the #BlackLivesMatter signs appear than there was an all too predictable white backlash:

“A Saint Louis-area minister, for example, wrote of a “Black Lives Matter” sign being defaced with “All Lives Matter” written on the front and a racial slur written on the back.  The fact that “All Lives Matter” is being used to argue against the idea that Black lives matter is proof that (1) People spreading that slogan don’t really believe Black lives matter, at least not equally, and (2) It’s therefore not true that all lives do matter equally in their eyes.  The statement’s use belies itself.  If all lives matter, then black lives matter, so why the argument?  Why the comeback?  The comeback proves that statement false, and proves it for what it is — a response born of fear and racism.” [Schade, November 2014]

The point has been made repeatedly that the response “All Lives Matter” is (1) a way of diluting the sting of direct allegations of police brutality, use of excessive force, bias, discrimination, and/or profiling; after all, “white lives” matter too? Right?  The problem, of course, is the disproportionate use of force against people of color. [ProPublica] and (2) a theme useful in an attempt to appear “post racial.”   The erasure of “race” is as silly as it is counter-productive.

Another form of reaction comes from those writers and pundits who opine that the #BlackLivesMatter movement is congenitally flawed, based as it is on whether or not Michael Brown raised his hands, or if a flight from an officer constitutes  a defiance of law and order, or if the individual victimized had in some way been the instrument of his or her own destruction.

This utterly misses the point. The individual character flaws of individual actors – real or speculative – is not the origin, nor the basis, of the movement.

“To even lightly advance the idea that Michael Brown’s alleged transgressions make him incapable of being a symbol of the movement is to entirely miss its point. When people say Black Lives Matter, they mean every single life. If Michael Brown committed a petty crime and behaved disrespectfully to a member of a police office department that has been since proven to be predatory to its Black residents, it has no bearing on the fact that police officers across this country have bad habits that they disproportionately dish out on people of color.” (Michael Arceneaux)[NewsOne]

In addition to the backlash trap, and the basic flaw trap, there’s the dilution trap.

If #BlackLivesMatter then what of the unborn, the animals, the lives affected by climate change? Okay, fine – but those are separate issues entirely.  The wailing and whinging is ear splitting – why are people so upset about police assaults but not about abortion? – why are people so enraged about the killing of Cecil the lion but not about the deaths of African Americans?  First, and obviously, people have different personal interests and agendas. If one is an environmental activist that doesn’t necessarily include or preclude one’s participation or support for #BlackLivesMatter.  If one is opposed to abortion that, too, doesn’t include or preclude interest in #BlackLivesMatter.  If a person is opposed to trophy hunting for exotic animals that doesn’t automatically include or preclude interest in #BlackLivesMatter.  Purity can be a lovely thing, but even Ivory Soap was forced to advertise that it was 99.44% pure (pure what they never told us?)

If the #BlackLivesMatter advocates can wade through the backlash, the “basic flaw,” and dilution fever swamps, there’s at least one more to go.  It’s the “What Do You Want?” trap.   Evidently, by modern media standards, a movement must spring full born from the Head of Zeus, complete, and replete, with convenient press releases and position papers outlining precisely what the organization wants.  Detailed, of course, preferably with bullet points, for easy translation into quick copy.  The #Occupy movement was battered by the media for not being “well organized,” and too amoebic for translation into action, it never occurred to some media lights that perhaps there was a wide range of individuals uncomfortable with and opposed to the various implications and results of corporatism?

The basic concept behind #BlackLivesMatter is to make it stop.  “It” being the excessive use of force against people of color.  Beyond and beneath that aspiration isn’t a bedrock of easily digestible sound-bites, but a plethora of less specific topics we need to discuss; for example, the recruitment, training, and professional development of law enforcement officers.  Another element is the possible restructuring of judicial systems such that officers with dubious records in community relations aren’t pre-judged innocent before being held accountable for their actions.  Still another, the implementation of community policing strategies and programs.  Complex issues don’t lend themselves to sound-bite solutions, and racism in American life is an extremely complex issue.

Nothing better illustrates the racism implicit in the opponents and critics of #BlackLivesMatter than the institutional reaction to their organization.  “ZeroFox,” a cyber-security firm was hired to provide surveillance of the #BlackLivesMatter leadership, whom it deemed a “high” threat, and potentially “physical.” [MJ]  If this is reminiscent of the FBI tracking Dr. Martin Luther King, Jr. then we should note that it was the FBI who recommended ZeroFox to the city of Baltimore.  According to at least one source, the DoJ has been monitoring the movement since the demonstrations in Ferguson, MO. []

Could this be because African Americans are “emotional,” “violent,” and easily led to acts of destruction?  If that construct informed any of the surveillance and subsequent reporting, then we do, indeed, have a long way to go in removing institutional racism from American governance.  Did some observers or officials find such surveillance and reporting “comforting,” assuaging as it might the biases underpinning notions like Blacks are Destructive unless kept under close watch and control?  If so, we haven’t moved far enough away from the Slave Patrol mentality of the 19th century – and that needs to be discussed.  The reports on possible graffiti knitting ought to make fascinating reading?

Perhaps we’ll get,”Twelve parking meters were assaulted (read: covered) with 100% acrylic Red Heart fibers (read: knitting yarn) overnight in the east metro suburb of Keenpeele. Profilers tell us the possible perpetrators are female, between the ages of 15 and 95, carrying sharp needles.”  Meanwhile, we’d not want to give away the location(s) of those ladies who are crafting scarves, sweaters, and baby booties while discussing how to improve race relations in the U.S. of A., and inviting other women to join their productive efforts.

we need to talk Seriously, the #BlackLivesMatter movement could do with more support and less surveillance.  More understanding and less pontificating analysis. More serious discussion and fewer sound-bite sensationalism pieces.  More honesty and much less rationalization on the part of its critics and opponents.   More focus on the extent of the problem and less narrow focus on the individuals actors involved.  We do need to talk instead of appropriating and misappropriating the #BlackLivesMatter topic.

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Filed under Judicial, Justice Department, racism

The Old Congressional Punching Bags

Amodei 3 The 114th Congress had a fine time with amendments to the appropriations bill for the Department of Justice (H.R. 2578)  A few of these are worth considering, and noting the positions taken by Nevada’s Congressional Delegation. 

Bag One: Amendment 271, from Representative David Reichert (R-WA) cuts $100 million from the Census Bureau and transfers the money to the COPS program. Reichert’s punch line is commendable: “Today there aren’t enough cops on the street. The community policing program has, in some parts of this country, been eliminated or cut back. So school resource officers are gone in some communities. Storefront officers are gone. They are gone, Mr. Chairman, and we need to bring them back. We can do it together. We can solve this problem and keep our community safe.”  [Thomas]  Where he found the money is not.  It’s taken from the programs and periodic census appropriations in the Census Bureau. [HR 2578 pdf page 7 line 8] The Wingnuts among us don’t like the Census Bureau because it collects information on Freedumb Folks

The corporate lackeys aren’t happy with the social programs and any way they can prevent reliable statistics from being compiled which indicate poverty levels, numbers of children living in poverty, numbers of elderly relying on nutrition assistance, etc. is acceptable.    The problem with whacking demographic statistics is that these are used by companies, large and small, on which to base expansion, hiring, store placement, and other business decisions.  There is some information available from private business information firms, but by cutting the capacity of small business to easily access retail level statistics from the Department of Commerce, Congress has just made it harder on the little guys.  Not that the interests of truly small family owned businesses has been an essential feature of Republican politics lately… and we won’t know exactly who favored this sleight of hand because the amendment was adopted on a voice vote.

This wasn’t the only raid on the Census Budget. Representative Ted Poe (R-TX) Offered his amendment to “reduce funding for the Periodic Censuses and Programs by $17.3 million and increase funding for victims services programs for victims of trafficking by a similar amount.” [Amdt  275] This, too, passed on a voice vote.

Bag Two: Republican Congressman Robert Pittenger (R-NC) offered his amendment (294) “an amendment to increase funding for the FBI by $25 million and to reduce funding for administrative provisions of the Legal Services Corporation by a similar amount.” The Legal Services Corporation is another popular punching bag for conservatives.  Pittenger’s specific amendment failed, but the 20% cut in the Legal Services Corporation funding stayed in the final bill, the vote on which was 242-183.  Representatives Amodei, Heck, and Hardy voted in favor of the cuts, Representative Titus voted no. [rc 297]

The bill passed after lawmakers turned back an amendment from Rep. Robert Pittenger (R-NC) to cut LSC’s funding by an additional $25 million, with the money to be reallocated to the FBI budget.  The amendment failed  by a vote of 263-163.” [LSC]  Representatives Amodei and Hardy voted in favor of the Pittenger amendment; Representatives Heck and Titus voted no. [rc 275]   Even without the extra slash from the Pittenger amendment, what’s the impact of the House appropriations on the Legal Services Corporation?

“We are disappointed that in the face of enormous unmet need for essential civil legal services among low-income Americans and other issues affecting access to justice, the House has voted to cut LSC funding by 20% to levels not seen since 1999,” said LSC Board Chair John G. Levi and Frank B. Strickland, LSC Board Chair during the George W. Bush administration. “We recognize that this is a time of austerity, but the foundation of our country and the integrity of its legal system are built on the concept that everyone is entitled to fair and equal access to justice, irrespective of their economic means. Because this is a core American value, we are hopeful that significant additional funds will be provided to LSC by the Senate or in a negotiated budget agreement later in the year.”

LSC estimates the funding cuts will force local programs to lay off more than 1,000 staff members, including 430 attorneys, and close 85 legal offices nationwide.  This would result in 350,000 fewer people served and 150,000 fewer cases closed each year.”    [LSC]

Just as the Census Bureau presents an obvious punching bag for the radical right, so does the Legal Aid budget.  No matter that Nevada is already working on shoestrings … there are 23 lawyers, about 14 paralegals, and 15 other assistants in Nevada who worked on 3,984 cases in 2014.  In case the conservatives are thinking that all Legal Aid does is represent gang members in criminal courts – think again.  Nevada Legal Aid is NOT the public defenders office.

Of the 3,984 cases Nevada Legal Aid worked on in 2014, 2,669 (67%) were concerned with housing. There were 366 income disputes, and another 175 consumer law cases.  And, who were these people?

Clients by Ethnicity Nevada 2014
White 1,822 46%
African American 1,172 29%
Hispanic 641 16%
Native American 131 3%
Asian/Pacific 97 2%
Other 121 3%
Total 3,984 100%

Nothing says “protecting corporate interests” quite so well as reducing the capacity of low income citizens of Nevada to prevail in their disputes about housing, income, and consumer protection.

It might be well to recall even before the next election rolls around that three members of the Nevada Congressional Delegation (Representatives Heck, Amodei, and Hardy) believed it was perfectly defensible to punch the Census Bureau – from which most truly small businesses get their demographic data, and the Legal Services Corporation – the last resort of those who have been unlawfully evicted, swindled, or cheated – one more time.  There aren’t too many more hits these agencies can take.

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Filed under census, civil liberties, Commerce Department, Congress, conservatism, Judicial, Justice Department

Harry’s Gambit

ReidSenate Majority Leader Harry Reid (D-NV):  Floor Statement 11/21/2013 –

In the history of the Republic, there have been 168 filibusters of executive and judicial nominations. Half of them have occurred during the Obama Administration – during the last four and a half years. These nominees deserve at least an up-or-down vote.”

“This gridlock has consequences. Terrible consequences. It is not only bad for President Obama and bad for the United States Senate; it’s bad for our country. It is bad for our national security and for our economic security.”

“Today the important distinction is not between Democrats and Republicans. It is between those who are willing to help break the gridlock in Washington and those who defend the status quo… This change to the rules regarding presidential nominees will apply equally to both parties. When Republicans are in power, these changes will apply to them as well.  That’s simple fairness. And it’s something both sides should be willing to live with to make Washington work again.”  (emphasis added)

The money quote is in the first line.   The motivation comes in the press release wherein Senator Reid states the obvious:

“It is a troubling trend that Republicans are willing to block executive branch nominees even when they have no objection to the qualifications of the nominee. Instead, they block qualified executive branch nominees to circumvent the legislative process. They block qualified executive branch nominees to force wholesale changes to laws. They block qualified executive branch nominees to restructure entire executive branch departments. And they block qualified judicial nominees because they don’t want President Obama to appoint any judges to certain courts.”  (emphasis added)

In short, nominees are being stymied for reasons which are superfluous to the functioning of our courts or to the operation of our executive branch — it’s pure politics.   Reid goes on to explain in a trip down memory lane:

“At the beginning of this Congress, the Republican Leader pledged that, quote, “this Congress should be more bipartisan than the last Congress.” We’re told in scripture that, “When a man makes a vow… he must not break his word.” Numbers 30-2. In January, Republicans promised to work with the majority to process nominations… in a timely manner by unanimous consent, except in extraordinary circumstances.

“Exactly three weeks later, Republicans mounted a first-in-history filibuster of a highly qualified nominee for Secretary of Defense. Despite being a former Republican Senator and a decorated war hero, Defense Secretary Chuck Hagel’s nomination was pending in the Senate for a record 34 days, more than three times the previous average. Remember, our country was at war. Republicans have blocked executive branch nominees like Secretary Hagel not because they object to the qualifications of the nominee, but simply because they seek to undermine the very government in which they were elected to serve.”

And so it began… it didn’t take the Republican minority a full month to renege on their promise to deal with the backlog of civilian nominees.   Now what?

Oh, wail the Washington Chatterati, this action to reduce the filibusters of judicial and executive will come to grief.  The acrimony will increase!  Uh, if it took the GOP only three weeks to back off from their initial promise not to filibuster qualified nominees, the level of acrimony has already hit the top of the scale.  Not to mention the Republican precipitated Government Shutdown which was not exactly an outstanding example of cooperation and good will.

Not sure if the Gridlock assertion is real?  The full list of civilian nominations in committee is located here.  The list of judicial nominations for the district and circuit courts is available here.  It doesn’t take much imagination to look at the lists and conclude that if the Republican minority in the Senate were to filibuster each and every nominee there would continue to be serious backlogs in our courts for the foreseeable future.   Now, consider the “acrimony factor.”

If the present system, allowing the filibuster of every civilian (including judicial) nominee, were to continue in the Senate, and if the Republicans regained the control of the Senate, then it isn’t inconceivable that the Democratic minority would revert to the same tactics as the GOP in the 113th Congress.  Imagine the judicial system if this were to continue through subsequent Congresses?

The only people who would be served by a completely dysfunctional judiciary are those who are already fulminating about the Evil Government taking their unspecified “freedoms,” the modern anarchists.

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Filed under filibuster, Filibusters, Judicial, Politics, Reid

Justice Delayed and Denied

GavelThe U.S. Constitution is clear on the subject, there will be the establishment of federal courts, and the 7th Amendment guarantees our access to those courts should we decide to bring a suit the value of which is over $20.00 — big money back in 1789.  Further, the Constitution assumes that these courts will function equitably, with no advantage given to one side or the other.  The 6th Amendment guarantees a “speedy and public trial” in criminal cases, and we can safely assume the founders intended to avoid protracted entanglement in our civil proceedings.   Our Republican contingent in the U.S. Congress has other ideas.

“Backed by House colleagues and GOP attorneys general from around the country, Senate Republican leaders are whipping opposition to advancing the nomination of Patricia Millett — or anyone else — for the D.C. Circuit Court of Appeals, which is one notch below the Supreme Court and often has the final word on matters of executive authority.” [TPM]

Why? Because the Republicans argue that the D.C. Circuit Court of Appeals has too many judges assigned to it, and therefore — in terms that are Orwellian in their essence — to appoint new members to fill vacancies is to “pack the court,” a blatant attempt to obfuscate the issues by comparing the appointment of judges to fill vacancies is equatable to FDR’s proposal to add members to the U.S. Supreme Court.

The Numbers Game

At the heart of the current controversy is the D.C. Circuit Court of Appeals which has 11 judgeships, and three vacancies.  Granting that the D.C. Court of Appeals has the lightest workload in the circuit system, with 1189 appeals filed in 2011 and 1,200 filed in 2012 [UScourts pdf], the number of judges in itself doesn’t make the case for a reduction in the number of judges when it is noticed that there are 1,287 cases pending from 2011 and another 1,369 from 2012.   Indeed, the number of appeals filed and the number of cases pending could be used to support the contention that the appointment of more judges would be helpful to deal with the backlog.

In fact, the 9th Circuit, which has the largest number of cases and judges (3.9% increase in cases filed 2011-2012), has two vacancies and has been slogging along, able to reduce its pending cases by only -0.1%.  [UScourts pdf]

The situation at present is that there are 874 federal judges, and there are 91 vacancies (17 circuit courts of appeal & 74 district courts). Worse still there are 37 instances defined by the U.S. Courts to be “judicial emergencies.”  A judicial emergency is defined as:

Circuit Court  any vacancy in a court of appeals where adjusted filings per panel are in excess of 700;  OR any vacancy in existence more than 18 months where adjusted filings are between 500 to 700 per panel.
District Court any vacancy where weighted filings are in excess of 600 per judgeship; OR any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship; OR any court with more than one authorized judgeship and only one active judge.

Not to put too fine a point to it, but if U.S. citizens have cases before their federal courts they are in some danger of being in the “Justice Delayed Is Justice Denied” category as they wait for openings in dockets for the adjudication of their cases where there is a Judicial Emergency.  Even in the D.C. Circuit Court of Appeals in which there are three vacancies and two nominations, the lack of three judges means slower decisions — delayed is, in essence, denied.

Judicial Appointments by Administration

A look at the chart above lends credence to Senate Majority Leader Harry Reid’s (D-NV) comments on the matter:

Senate Republicans were happy to confirm judges to the D.C. Circuit when Presidents Reagan and George W. Bush were in office. But now that a Democrat serves in the White House, Republicans want to eliminate the remaining three vacant D.C. Circuit Court seats, although the court’s workload has actually grown since President Bush was in office,” he said. “Republicans are using convenient but flawed political arguments to hamstring this vital court and deny highly qualified nominees like Ms. Millett a fair up-or-down vote.” [TPM]

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Filed under Judicial, Politics, Republicans

Three Legs and Not One To Stand On

The political philosophy underpinning the remarks of such Representatives in Congress as Heck (R-NV3), Amodei (R-NV2), and Senator Dean Heller (R), is that implementing the Three Legs of the Grand Plan will create Prosperity.  Leg One is to be a reduction in government spending. Leg Two is to be the deregulation of the financial sector.  Leg Three is to be the tort reform.   The stool is shaky as it is, but the implementation of this policy makes a bad situation even worse.

Theoretical Fantasies

GDP formulaThe first leg of the stool is based on a fantasy vision of economic practice as it has never existed.  As has been argued repeatedly in this space, you don’t get economic growth as measured in improvements in the Gross Domestic Product if you reduce one of the components of the GDP formula: Government spending.  One of the reasons GOP economic arguments make no sense is simply that you can’t have it both ways — the reduction of government spending reduces in turn the total GDP, therefore contending that government spending is a drag on the overall economy is nonsense.

The only way to prevent this notion from being obviously risible is to couch it in terms which will appeal to those who don’t rattle Christmas packages to see if there’s anything inside.  Thus we get an infinite variation on the same old theme: “The government takes your money, that’s money you can’t spend for what you want.  So, the government is taking money out of the economy.”  Stop and think for a second.

This argument works IF and Only IF the government takes the money, salts it away in a giant mattress and never spends it, draining money away from the consumer economy.  But wait — the government does spend it.   The Defense Contract Audit Agency deals with some $19 billion worth of private contracts, and reviewed over 2,600 forward pricing proposals totaling $103 billion in FY 2011. The Defense Contract Management Agency offers advice on about 334,000 prime contracts performed by 19,600 contractors.  [Comptroller DoD pdf]

Since there was almost never a Defense Department contract inked in any congressional district that wasn’t beloved by the local congressional Representative — there’s a corollary to the government spending argument:  Government money is spent on Stuff We Don’t Like.

At this point the argument moves out of the realm of economics and into the pit of fear-mongering and all too often good old garden variety racism.  “They” are getting all your hard earned money.”  Who’s “They?”   It’s nonsensical to argue that all government spending is a drain on a consumer based economy, so the GOP targets those who are benefited by government services in categories other than Defense.

The old canards are still popular on the hustings: The Welfare Queen — a mythological character long since debunked;   greedy foreign powers to whom we give “foreign aid,” which in reality only takes up only about 1% of the total federal budget; and, in its latest incarnation, The Mooching 47% who supposedly don’t pay taxes and simply mooch off the rest of us.   The obvious point is ignored — these people do pay taxes (especially state and local ones) and they aren’t earning enough money from their low and minimum wage jobs to be liable for federal income taxes.  If we truly wanted to reduce the federal deficit by increasing tax revenues then increasing the minimum wage would be a way to do it.

In sum, when a supposedly economic argument depends on a self-contradicting predicate and self-serving mythologies to support it there is really nothing there.  It’s mostly wind bags blowing into the sails of corporate executives and the rentier class who don’t want to pay taxes.

Deregulation NotThe De-Regulation Myth

The Welfare Queen isn’t the only bit of ideological  mythology out there which tends to promote the interests of the few over the general benefit of all the others.  What bankers want is reduced risk.  Why not? None of us like to be in seriously risky situations.  The purpose of various kinds of funds and investment products is generally to reduce risk…and then the investment houses can play with their derivative products.  It’s the play time which has become part of the problem.

Boiled right done to the skeletal remains of Casino Capitalism, de-regulation has helped create the manufacturing of financial products which have no function other than to create secondary (and tertiary) markets for palming off risk onto others and thence to bet on the results of various sales.

There’s no small amount of circumlocution involved in justifying these products and practices.  “We’re not doing anything wrong,” whine the investment houses,”We’re operating within the laws, and the revenue from these sales (“markets” ) is now a crucial part of our total revenue.”  Yes, and who helped write the laws creating the de-regulated environment, and implementing the rules for functioning in a de-regulated financial regime?

To illustrate the point:  Imagine a game in which I get to write the rules.  Further imagine a game in which not only do I get to draft the original rules but if at any point it looks like you might win something I get to revise the rules to my advantage?  Now, imagine my dismay when you discover what I’m doing and try to make me play by the original rules?

Returning to the original rules — there is nothing intrinsically wrong with derivative trading, and nothing essentially nefarious about swaps and other financial products — it’s when the system becomes freighted with sales which would be more appropriately assigned to realms like Las Vegas and Atlantic City than to the investment in corporate bonds and similar products that the problems begin.

If there’s slippage in commodities and foreign exchange trading, there’s always something to bet on with interest rates? So it would seem.

“Trading revenue at U.S. banks increased 73 percent last quarter, on a surge in trading of over-the-counter interest rate derivatives, according to a report on Wednesday by the Office of the Comptroller of the Currency.  U.S. commercial banks and savings institutions reported trading revenue of $4.4 billion during the last three months of 2012, up from $2.5 billion in the same period a year earlier.

Interest-rate trading revenue represented 95 percent of total trading revenue, and more than made up for sharp declines in commodities and foreign exchange trading, and a $713 million loss from trading in credit products.” [WSJ]

There are a couple of other points in the Office of the Comptroller of the Currency’s report which deserve more attention:

“Derivatives contracts are concentrated in a small number of institutions.  The largest five banks hold 96 percent of the total notional amount of derivatives, while the largest 25 banks hold nearly 100 percent.

Derivative contracts remain concentrated in interest rate products, which represent 81 percent of total derivative notional values.  Credit default swaps are the dominant product in the credit derivatives market, representing 97 percent of total credit derivatives. “

While some of the Wild West aspects of investment banking seem to be calming down, with better collateral and tighter internal controls, the Big do seem to be getting Bigger — with another 10 major banks dropping out of the derivatives game.

Since the last investment banks collapsed in a heap after the Mortgage Meltdown, and just about everyone now is a “commercial” bank, U.S. taxpayers should be paying far more attention to how banks are accounting for the use of deposits in their derivative games.  Just a friendly little warning.   And, Paul Farrell, of Marketwatch has more on the subject of Wall Street banking, which is well worth the click and read.

Finally, good old fashioned corporate bonds have been attractive to investors because they were seen to be safer than equities, and paid a slightly better yield than Treasuries.  These are the “loans” made to corporation which finance expansion, etc.  Manic Mr. Market might be having a spasm lately?

“New, more granular data compiled by the New York Federal Reserve shows a worrying picture of the corporate-bond holdings of primary dealers—the big securities firms who deal direct with the Fed.

As of May 22, they held net positions of just $13.5 billion of investment-grade bonds maturing in more than one year and $8.3 billion of high-yield bonds—in a market with a value of trillions of dollars. Anecdotal evidence suggests institutional investors have on occasion found dealers unwilling to buy relatively modest amounts of bonds in recent days. That could mean sharper price declines lie ahead. Investment-grade bonds, which offer historically low yields, could be hit hard.”  [WSJ]

Investment grade would be the good stuff, and if investment divisions aren’t buying into corporate financing plans…what will they be buying?

Pain and Peril

Product Liability Cases 2011 From the moaning and groaning emanating from the far right one might think the Federal courts were awash in product liability cases, and the manufacturing sector hamstrung by PL cases.  Not so fast.

First, the numbers shown in the graphic above are only filings — they aren’t the outcomes.  Cases get tossed, get settled, get bogged down… even then the percentage of PL cases in Federal courts hasn’t moved above 23.04% in the last few years.

Secondly, the odds aren’t really all that favorable for tort cases. The Bureau of Justice Statistics reported for the 2002-2003 period in which there were a total of 274,841 civil cases in Federal courts, some 13,000 of which were related to product liability, that “Plaintiffs won in 48% of tort trials terminated  in U.S. district courts in 2002-03. Plaintiffs won  less frequently in medical malpractice (37%) and  product liability (34%)trials.”  Therefore, the odds the plaintiff will win in a product liability case aren’t all that good, plaintiffs who do win will find the judgment appealed, and most appeals are more beneficial to the defendant than to the plaintiff.

Third, consider the kinds of corporations which are most commonly involved in litigation over product liability — pharmaceuticals, medical devices, automobiles and other vehicles, general aviation airplanes and other products…  Generally speaking when something goes wrong with a product to be inserted, injected, or ingested in a human body it goes very very wrong.  Likewise, human beings don’t tend to survive hard crashes and long falls.   Large numbers of cases, such as the number in 2006 may also illustrate a particular problem — in that instance asbestos — or in other instances things like dangerous intrauterine devices.

Far from being an horrendous burden to corporate headquarters, the total filings in federal product liability cases really haven’t  moved all that much in recent years, as the quick graph below illustrates.

Product Liability CasesWhat the proponents of so-called tort reform are counting on is the impact of jury awards in a few spectacular cases to grab the public imagination, and from thence try to make the point that “we” are paying for other people’s pain and suffering with higher prices at the register.  It isn’t too far-fetched to conclude that those who are marketing some of the more dangerous products are the ones most interested in “tort reform” for guns (almost impossible to sue these days), pharmaceutical products (also almost impossible if the FDA has approved the drug), and automotive and aviation equipment — you have about a 34% chance of winning your case.

Long Leaps of Faith

Employees and business owners alike should be cautious about accepting the claims from the GOP that their “economic” vision will do much of anything for the average worker or the average business owner.    The Federal Spending Myth demands a person believe in the impossible — more growth while diminishing one component of the GDP formula.  The De-Regulation Myth demands a person conflate the wants of Wall Street with the needs of Main Street.  And, the Great Tort Argument is merely an inflated barrage balloon deflecting further away the odds of a person injured by a defective product having his or her good day in court.

Three legs of the stool and not one holds up to scrutiny.

* Information on the Judicial system and statistics can be found in the Bureau of Justice Statistics reports,  and in reports from the Supreme Court, other tables offer more statistics and compilations.  The format and contents for reports from the Supreme Court changed in 2004, and some statistical data may need to be gleaned from other sources.

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The Best and the Brightest

Best line of the morning: “Heller wooing Hispanics is a little like President Barack Obama showing up at retreat of the Koch family, the now-famous billionaire brothers who loathe the president’s policies.”  [LV Sun]

Best statement on the Dream Act: Senator Harry Reid –  “Mitt Romney’s out-of-touch statements about the DREAM Act are a slap in the face to Nevada’s Hispanic community. To those who would earn legal status by risking their lives to serve our country in uniform or attending college so that they can better contribute to the United States, this commonsense legislation is anything but a ‘handout’. It shocks me that more Republicans are not demanding an apology for this extreme position about a proposal that was originally co-authored by a Republican.” [NRDC] Note: appointed Senator Dean Heller (R-NV) opposes the DREAM Act.

Best Chart of the DayTalking Points Memo – “How the Debt Limit Fight Hurt the Economy.”  A modified version of the chart from the Federal Reserve Board of Governors (January 2012):

Between the two versions of essentially the same general category of economic information it isn’t too difficult to discern that all the hyperbole about the Debt Ceiling tended to depress consumer confidence and business enthusiasm for positive economic gains.

Best Quick Link of the Day:  Library of Congress, alphabetical listing of bills introduced in the 112th Congress.   Abortion (49), Birth Control (1), Family Planning and Birth Control (28), Firearms and Explosives (81), Marriage and Family Status (44), Oil and Gas (261), Separation, Divorce, Custody, Support (15), Terrorism (233).  So far…

Best Report Not Enough People Are Going To Read:  American Society of Civil Engineers, (pdf) “Water Report: Executive Summary – Failure To Act.”   By 2020 we will have a $84.4 billion gap between what we’re spending and what we need to spend on water resource infrastructure.

Best Place To Keep Track of Judicial Nominations:  American Constitution Society, “JudicialNominations.Org.”   Click here for the (pdf) update on judicial nominations as of January 2012.

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Filed under 2012 election, Heller, Immigration, Infrastructure, Judicial, Nevada politics, Reid