Things That Go Bad in the Fridge and Elsewhere: Trump – SCOTUS edition

Shall we start with a couple of propositions?  The first is that a smell test is always in order.  The second is that if the item in questions does manage to pass an initial smell test this should not be taken to mean said item is fit for human consumption.  The latest edition of TrumpWorld in regard to the convenient SCOTUS retirement aligns with both our propositions.

Handy Observation:  The USDA notes that pasteurized milk should never be left at room temperature for more than two hours. It may pass a smell test at this point, but the bacteria which render a $3.50 gallon of milk perfectly disgusting have already begun their assault on the bottle.  In fact, the bacteria will start to grow when the milk reaches 40°F.  Hence the advice to store milk on the bottom shelf of the fridge (the coldest area usually).   Should ambient temperatures reach 90°F please don’t leave the milk out for more than one hour.

Supplemental Observation:  When there are headlines and stories about Justice Kennedy’s retirement such as the ones in Business Insider,  Salon, and the New York Times, a rational person would start assembling bits and pieces into a larger picture of an increasing coliform count in the milk bottle.

Handy Observation: Care of a household septic tank system is based on the septic tank capacity and the household size.  In other words:  A homeowner with a septic system should calculate a pumping schedule based on a design to retain 24 hours worth of wastewater assuming a fifty percent digestion of solid waste.  Since there’s nothing quite so repellent and obnoxious as a clogged drain field and associated blubbering sink hole, it is advised that the tanks not be under-pumped (early drain field failure looms) or over-pumped (a complete waste of time and money.) There are easy charts for these calculations.

Supplemental Observation:  When discussing the maintenance of uncultivated low lying ground where water collects into bogs, marshes, or quagmires, periodic drainage based on a reasonable evaluation of use and risk is advisable  Over-pumping, i.e. removing processes and personnel merely for the sake of “drainage” without appropriate justification is a massive waste of time (usually departmental) and money (usually taxpayers’.)  Under-pumping can easily precipitate the failure of a drainage scheme altogether.  Failure to reduce obstacles and impediments to drainage will always result in drain field collapse.  There are electronic monitors available for accurately measuring levels of tank (or swamp) scum and sludge.

A careful homeowner (citizen) may want to measure scum and sludge build up by regularly noting any of the following:   Numbers of lawsuits filed by organizations such as CREW, etc., Increasing numbers of published reports from Whistle-blowers and their attorneys; and reports from independent investigative agencies and departments.  (Congressional committee reports at present are unreliable monitoring devices.)

Thus, we might want to heed our initial propositions — smell tests of fridge contents and swampy bogs are always relevant; however, merely because the initial odor isn’t completely appalling doesn’t mean we should be ingesting it or living in close proximity to the source.

Pouring the soured, bacteria laden, milk down the drain into a well maintained national septic system can be accomplished in November 2018.

Gorsuch’s Record Invites Some Phone Calls

The 45 Administration would very much like to have Judge Gorsuch confirmed as a member of the US Supreme Court. The judge for his part has been loathe to offer any more than Name, Rank, and Serial Number during his confirmation hearings. Not that this tactic is anything new in the process.  Famous for his Hobby Lobby decision, his dissent in TransAm Trucking v. ARB-DOl, (PDF) is attracting attention.  This is the now infamous Frozen Trucker Case in which Judge Gorsuch opined that taking such things as common sense, and legislative intent, were extraneous and if to operate a truck means to drive a truck (and its trailer with the frozen brakes) then that’s all there is to say on the subject. It’s interesting to note that Judge Gorsuch was dismissive of reinterpreting the wording of a statute, while interpreting the wording of a statute in such a way as to defend the indefensible actions of the trucking company.  In less complimentary terms, the Gorsuch rule appears to be an interpretation is acceptable if and only if that reading agrees with his interpretation.

There is still time to reach Nevada’s Senators, Heller (702-338-6605) (775-686-5729) and Cortez Masto (702-388-5020) (775-686-5750) (202-224-3542) on this subject.  Little wonder that Democratic Senators interviewed on the topic have said things like “his answers are unacceptable,” and “his answers are evasive,” and “his answers have been less than forthcoming…”

Judge Gorsuch needs to supply more than the Alito/Roberts song and dance routine to the Judiciary Committee, and the Senators need to attend to the fundamental problems with his nomination to the highest court in the land. His responses so far have been noncommittal and apolitical, but his decisions have been those of an activist ultra conservative. Actions do, indeed, speak louder than words.

>Coffee and the Papers

>The Las Vegas Paranoid Press, Nevada’s only publication to file lawsuits for including their verbiage in posts and other formats, has a polling showing “Our Lady of Perpetual Campaigning” Sharron Angle, moving “up” in the GOP race for a crack at the Senate race. That she has proved unelectable to any office since leaving her State Assembly seat, doesn’t appear to bother her radical right wing supporters. Indeed, she seems to be closing on The Poultry Princess, and former beauty queen, Sue Lowden.

We’re Number 1: And, again on an unpleasant list. Nevada, specifically the Las Vegas Valley still leads the nation in home foreclosures. [Full Story: Las Vegas Sun] One out of every 69 homes in the area is vulnerable.

Senator Harry Reid’s the target of an RNSC blast about accepting donations from Bank of America in the past and now criticizing BofA’s practices. [TV13] But, wait, there’s more: “Republicans John Ensign and Dean Heller have both gotten money: senator ensign receiving $3,000 back in 2008. Congressman Heller got $8,000 in 2008, and another $1,000 this year.” Evidently, the GOP line is that one cannot accept campaign donations and then seek to regulate the practices of the corporation making the donation. If this is the philosophy of the RNSC, then a person could easily conclude that they take “pay to play” very seriously, or that the organization hews to the old saw, “A good politician is one who having been bought, stays bought.”

But, what will happen to Senator Blanche Lincoln’s (D-AR) proposal to divest commercial banks from their trading desks? TPM speculates that the Democrats may be delaying this thorny issue until after the Arkansas primary. PlumLine is predicting a run-off in Arkansas between Lincoln and Lt. Gov. Bill Halter.

New GOP Whine: “Greece’s Getting A Bail Out” but, wait… as usual there’s an explanation that reverses the pretzel logic – “How much will this cost American taxpayers? Nothing. The Fed’s swap lines tend to make money, not lose money. And since the IMF is already fully funded, it’s not like Congress will have to spend additional resources. Besides, as the White House is quick to point out, Americans have never lost money on IMF investments. By Pence’s reasoning, every time the IMF has ever intervened to help anyone, it constitutes an American “bailout” of the aided nation. Since U.S. administrations of both parties have supported IMF for decades, Pence should have started whining years ago.” [TWM] The bottom line is that Rep. Pence doesn’t have a strong grip on the mechanics of international finance.

Speaking of missing the point: Right wing media outlets are clinging to the story that SCOTUS nominee Elena Kagan “kicked military recruiters off the Harvard Campus.” Not. So. Fast. “Throughout Kagan’s tenure as dean, Harvard law students had access to military recruiters — either through Harvard’s Office of Career Services or through the Harvard Law School Veterans Association. Moreover, Kagan consistently followed existing law regarding access to military recruiters. Kagan briefly restricted (but did not eliminate) access to recruiters only after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could do so.” And, since it was Harvard University’s call to make…she followed Harvard’s rules. [MMA] “Consistently followed existing law”… isn’t that the kind of thing conservative say they want in a member of the Supreme Court?

>Blowback: GOP attack machine falters on Sotomayor nomination

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One way to interpret the appearance of some genuine American fringe types on cable news, dancing around the facts as fast as they can to besmirch the reputation of Judge Sonia Sotomayor, is that they are representatives of the only ones doing so. Their pathetic performance looks for all the world like 2^nd graders trying to get spit wads attached to the chalk board, with inadequate aim, and without sufficient substance.

How Many Degrees Does It Take? Nevada’s own right wing Senator John Ensign took his shot. He wasn’t sure Sotomayor had the “right intellect.” [LV Sun] Could it be that Senator Ensign isn’t impressed by those who win scholarships to Princeton, graduate second in the class, are admitted to the Yale School of Law, and edit the Yale Law Journal? This “wad” splattered, leaving the distinct impression in its wake that Senator Ensign isn’t inclined to bestow all that much respect to educated women. [DB] Perhaps not the impression he’d intended? At any rate, his plastic straw empty, Ensign resumed his place at the back of the class and hasn’t been heard from since. At least he didn’t disparage his former employer by opining that, “I know lots of stupid people who went to Ivy League schools.” [TP]

“Reverse Discrimination” Rim Shots: Loading up with ammunition for this argument requires believing that people who have never been discriminated against must never be made to compete with those who have, especially on a level playing field. This line of argument can be best sustained by those who thought Through the Looking Glass was a non-fictional work; the White Queen being perfectly lucid and historical when she declared to Alice, “Why, sometimes I’ve believed as many as six impossible things before breakfast.” [Sabian] Sanity notwithstanding, this is the argument tending to draw all manner of creatures from beneath the baseboards – specifically those out of the political limelight for some time.

Former House Speaker Newt Gingrich, who left Congress under clouds of ethics violation questions, hurled his invective “reverse racist” in legion with such sterling examples of tolerance and Christian charity as Ann Coulter and Rush Limbaugh. [ABC] If one’s pride is rooted in one’s race and not in one’s intrinsic value and humanity, then the Gingrich-Coulter-Limbaugh line is understandable, if more than a little pathetic. Those who see themselves superficially are hard pressed to see others in depth, and easily confuse ethnic “pride” with their own “racism.” The egregiousness is compounded when combined with xenophobia.

Tom Tancredo, defeated in his bid to be re-elected from his Colorado congressional district, has made himself available as the Voice of Xenophobic America, to berate Sotomayor for joining La Raza. The organization is, of course, the companion to the NAACP, and the American Jewish Committee, but that doesn’t stop Tancredo from unilaterally (or with the assistance of ALIPAC) decreeing that it is a “racist” organization, the “Latino KKK without the hoods or nooses.” [TPM] Frankly, the shots don’t come from further back in the room than this one. With friends like these the Republican Party doesn’t need any more enemies. Obama won the 2008 Hispanic vote by a convincing 36%, and if Tancredo keeps talking 2012’s figure could look even better…for Democrats. [Politico]

Tough Little Lady: Someone ought to remind the GOP that when then Presidential candidate Hillary Clinton was assailed as a “hard woman,” “cold,” and too “businesslike” to be a viable front runner the charges backfired dramatically. All the GOP spit-balling served in that venture was to bring the subject of outdated, well worn, and thoroughly discredited, sexism into the national spotlight. Now, Heaven help them, they’re trying it again. [NYT] “The Judge is too temperamental” Oh, really? She asks tough questions? Doesn’t put up with BS? Has annoyed some defense attorneys? When might these traits shackle the nomination of, say, a Scalia on the bench? Another reminder: President Obama secured 56% of the womens’ vote in 2008, as opposed to 43% for Senator John McCain. [RU.edu] Please, GOP, toss the spit wad, put the straw back in your pocket, take your seat, and don’t even think about using this line of attack again. Those numbers could get worse…for you.

Two things appear to be going very wrong for the Republican opposition to Judge Sotomayor’s nomination. First, the class clowns got out ahead of the class leadership? Right wing magazines offered them space, and the ravenous need for filler on cable news shows provided them face time. If the Republicans were trying to move away from the impression that they are the Party of Prejudice, then it doesn’t do to let the prejudiced ones speak for you without restraint. If the leadership of the Republican Party can’t restrain its spokespersons, the Limbaughs, the Coulters, the Tancredos, et. al., then that certainly could be cited as proof that the vaunted lock-step message control of the GOP has been shattered.

Secondly, if the leadership of the GOP let the class clowns take the lead, and supported the messages being sent by the anti-intellectual, anti-tolerance, anti-immigrant, and anti-female elements, then we can assume that they are happy to assume the mantel of perpetual minority party in a nation rapidly becoming more demographically diverse. I’m waiting for the first political cartoonist to take on the task of drawing a frustrated elephant tossing spit wads into a fan, only to have his discomfort increased as they sail back at him.

desertbeacon.blogspot.com

>Sotomayor and the Kipling Men: Limbaugh and Buchanan Bear the White Man’s Burden

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The hoary old racist-Imperialist thinking summarized so well by Rudyard Kipling in “White Man’s Burden” published in McClure’s magazine in 1899 after the U.S. took over the Philippines at the end of the Spanish American War, is alive and well and living in the Republican Party.

“Take up the White Man’s burden–

Send forth the best ye breed–

Go bind your sons to exile

To serve your captives’ need;

To wait in heavy harness,

On fluttered folk and wild–

Your new-caught, sullen peoples,

Half-devil and half-child.” [link to full poem]

The old, white, male, power structure that has bestowed on us the “Glass Ceiling,” inequitable wages, anti-immigrant hysteria, jingoism, militarism (as opposed to support for the actual military), and opposition to affirmative action is predicated on an understanding no more current than Kipling’s defense of empire: That it is up to the White, Male, Anglo-Saxon, Christian to “bear the burden” of raising up, and thereby controlling, the impulses of their “subjects.” Who were the subjects? Non-whites, non-males, non-northern Europeans, and non-Christians. But Kipling, rightfully so, is out of fashion, and the White Males must find code in which to speak what Kipling published in popular magazines.

Blasting ‘affirmative action’ as mouthed by Rush Limbaugh and Pat Buchanan in reference to the nomination of Judge Sotomayor to the Supreme Court, illustrates their code. A non-white, non-male, non-northern European is never immediately assumed to be qualified to bear the White Man’s Burden. The sexism of that era in which women tried to play basketball in corsets, or uncorseted with men excluded from the gymnasium, is part and parcel of the Limbaugh-Buchanan cosmogony. If a non-white, non-northern European woman is selected it MUST be because of “identity politics” and cannot possibly be the result of a search for a middle of the road, academically and experientially prepared, professional jurist.

It cannot be that if “Sotomayor benefited from affirmative action, then she’s nothing other than an example of affirmative action working the way it’s supposed to, precisely because whatever boost she had gaining access to these institutions, she then proceeded to distinguish herself as an exceptional student by any standard.” [tapped] Conservatives cry out that affirmative action diminishes the accomplishments of women and members of minority groups, “but any time a person of color is in the running for a prominent position they proceed to stigmatize them as furiously as possible. Kind of a self-fulfilling prophecy.” [tapped] Surely, the remnants of Kipling’s era bemoan, “these people” are by nature unfit to carry on the White Man’s Burden, after all they come from those who are “half devil and half child.”

Kipling also captured the sense of martyrdom explicit in the Limbaugh-Buchanan GOP. The White Man “binds his sons in exile, serves the captives’ needs, and waits in heavy harness,” presumably awaiting the glory that must surely come to him as a result of his ‘sacrifice.’ In a mindset in which it is automatically assumed that economic, social, and political rewards are to be meted out first to the White Man as a result of his ‘burdens’, and then if anything is left over the remains will be patronizingly dispersed among the “deserving poor;” the notion that a Woman, from a Spanish speaking ethnic group, is first in line for a place on the Supreme Court is anathema. It must be ‘identity politics;’ it has to be ‘affirmative action,’ because to think otherwise is to turn Kipling’s Martyrs away from the door.

A Kipling Man is strong, women are weakness personified. A Kipling Man is courageous, women are tentative. A Kipling Man is rational, women are emotional. However Kipling died in 1936 and the empire he extolled collapsed in the mid-twentieth century. All that remains are perfunctory meetings of the Commonwealth, the use of English as a bridge language on many continents, and the abiding sense in some white American men, the Kipling Men, that the “empire” has not been kind enough to them to fully recompense their bearing of so many burdens.

desertbeacon.blogspot.com

>Senator John Ensign and the Little Woman Nominated for the Supreme Court

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I’d have thought that a major national political party, already sloughing off members of ethnic minorities, citizens in nearly every state except portions of the South, and younger voters like a shedding dog in June, would think about how attacks on Supreme Court nominee Sonia Sotomayor’s intellect would sound to women. Evidently, this light hasn’t flipped on yet for Senator John Ensign (R-NV). Here are the junior Senator’s comments:

“The American judicial system is a towering example of freedom and liberty to the world. Throughout the confirmation process, I will work with my colleagues and thoroughly review Judge Sotomayor’s record to make sure she has the right intellect and understands the proper role of a judge — to interpret and apply the written law, not to decide cases based on personal feelings, politics or preferences. The confirmation process is just that — a process. We should not prejudge this nominee, but we should be diligent as we examine the nominee’s record, background and experience. [WashIndy] (emphasis added)

The ‘right intellect?’ First, Judge Sotomayor’s resumé: “Sotomayor graduated as valedictorian of her class at Blessed Sacrament/Cardinal Spellman High School in New York. She first heard about the Ivy League from her high school debate coach, Ken Moy, who attended Princeton University, and she soon followed in his footsteps after winning a scholarship. At Princeton, she continued to excel, graduating summa cum laude, and Phi Beta Kappa. She was a co-recipient of the M. Taylor Pyne Prize, the highest honor Princeton awards to an undergraduate. At Yale Law School, Judge Sotomayor served as an editor of the Yale Law Journal and as managing editor of the Yale Studies in World Public Order.” [WHPR] (emphasis added)

Now, what portion of that impressive academic history says “Silly Little Woman” to anyone? What part of the definition of a judgeship might Judge Sotomayor have missed while serving as a Federal District Judge and a member of the 2^nd Circuit Court of Appeals? Her resume at present stacks up very nicely alongside the other entries in the Supreme Court Bio’s. Therefore, Senator Ensign must be referring to personal characteristics, and here’s where he goes off the rails.

Presumably, had Senator Ensign wanted to comment upon her ‘mindset’ he’d have said so. Instead, his statement hinged on questioning her “intellect.” Senator Ensign, rather than discuss judicial philosophy, chose to frame his commentary in terms of “right intellect,” “proper role,” and “personal feelings.” In doing so he plunged directly into the Good Old Boy Stereotyping Exercise we’ve all seen before: “Women’s representation in popular culture facilitates the stereotype of the simple-minded, emotional, and domesticated female. This is perpetuated through various forms of media, including movies, cartoons, and television “ [CHD.edu] The obvious conclusion is that for Senator Ensign, “most” women are not “intellectual,” or may not have the “right intellect,” and therefore they must base their decisions on “personal feelings.” An exact match for the popular gender stereotyping.

A party represented by spokespersons like Senator Ensign isn’t poised to do much to avert further Republican problems recruiting women candidates for elective office, nor are his statements calculated to alleviate the 5% drop in women’s identification with the party since 2001. [Gallup] In fact, Democratic organizers are no doubt quite happy to have Senator Ensign continue along this line of attack. The more he talks the fewer women are likely to keep listening. And, that could actually end up being a good thing?

desertbeacon.blogspot.com

>No Mud On Me: Senators Establish Excuses For Upcoming Filibuster of Supreme Court Nominee

>Of course Senator John Ensign (R-NV) and the other ultra-right Republican members of the Senate are going to filibuster any Supreme Court nominee sent to Capitol Hill by the Obama Administration. Did anyone really believe they weren’t? Is anyone truly fooled by the table setting the GOP is currently doing to establish their rationalizations for their impending filibuster? Does anyone believe they won’t filibuster no matter who the nominee might be?

Friends of the Filibuster

For all of their histrionics about “up’er down votes” during the Bush Administration tenure, and for all of their impassioned oratory about “the President has the right to his appointments” in years gone by, their strategy thus far is to filibuster first and ask questions later. Senator Ensign now holds the dubious honor of a 90% “filibuster maintenance” vote, the highest of any member of the Senate. [Filibusted] The “Elite Eight” obstructionists still include Ensign, Tom Coburn (R-OK), Jim Inhofe (R-OK), Sam Brownback (R-KS), Jim DeMint (R-SC), Jim Bunning (R-KY), John Cornyn (R-TX), and David Vitter (R-LA).

By June 2008 Republicans in the U.S. Senate had used the filibuster on 73 bills, not all the filibusters were successful, but the rate of their obstructionism set records; easily passing the old record of 62 cloture votes. [HuffPo] A glance through the Senate voting records for the second session of the 111th Congress doesn’t show much reduction in the use of this tactic. [Senate] However, instead of proudly announcing that the Party of No intends to filibuster away on the Obama Administration’s nominee, the GOP leadership seems to be whining “The Devil Is Going To Make Me Do It.

The Eternal Litmus Test

On May 3, 2009, “Ensign said that he hopes Obama doesn’t have a litmus test in selecting a nominee to fill Justice David Souter’s seat and that the next nominee shouldn’t be someone who would legislate from the bench. “They need to get back to interpreting the law, and ultimately too many times lately they point to international law instead of the U.S. Constitution,” Ensign said on “Fox News Sunday” when asked about the possibility of a filibuster. “We need to get back to what the Supreme Court is supposed to be about.” [Politico]

Senator Ensign’s touched all the right buzz words, like “litmus test,” and “legislate from the bench,” and that the candidate should not ” make laws based on what they want to see in the Constitution.” These comments come with equal measures of hypocrisy and projection. There are no litmus tests on the Left or in the Center even remotely analogous to the Right’s Pro-Birth litmus test. Office of Legal Counsel nominee Dawn Johnsen is characterized as a “partisan activist” with “radical pro-abortion views” for serving as NARAL’s legal director by GOP Senators certain she will “politicize” the OLC; as if the Bush Administration’s OLC wasn’t the poster child for politicization. If this much attention is garnered by a nominee for an OLC position, how much more will be paid to a Supreme Court candidate?

Whose Judicial Activism?

Senator Sessions added his own version of a litmus test, he “has made clear that Republicans will be prepared to quiz the nominee to make sure that he or she will not be an “activist” on the bench. Such activist judges are “a threat to the rule of law” because they would allow their personal views to trump their commitment to the law, Sessions said.” [NatJourn] Interesting, when Chief Justice Roberts entangled the wording of the Fair Pay Act in legalese, and narrowed the question to a single point on which the argument for denying equal pay for equal work could be made – this wasn’t “judicial activism.”

Jeffrey Toobin summarized Justice Roberts’ brand of activism: “After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” [New Yorker]

Senators Sessions and Ensign clearly have different recipes for sauce for Republican activist geese, and Democratic or centrist ganders.

The Empathy Test

Senator Jon Kyl (R-AZ) weighed in with his litmus test. The nominee cannot be a person with empathy. “Sen. Jon Kyl made clear he would use the procedural delay if Obama follows through on his pledge to nominate someone who takes into account human suffering and employs empathy from the bench.” [G/AP] [DB] Senator Kyl added the “out of the mainstream” line to his clarification. “Senate Minority Whip Jon Kyl (R-Ariz.) said Sunday that the GOP will closely scrutinize the temperament of President Obama’s nominee for the Supreme Court, and will move to block any candidate whose decision-making is based on emotion or is out of the mainstream of American thought.” [The Hill]

Therefore, if any nominee is not in the mold of Justice Roberts’ activism on behalf of the empowered and elite, then his or her “activism” will trigger the filibuster. If any nominee is inclined to interpret the applicable laws in the context of modern American society, then the filibuster will be triggered by the Senators’ opposition to “social engineering.” If any nominee has spoken out for reform or modification of laws from outside the framework of the narrow Republican base definitions of “mainstream” (i.e. any non-evangelical or religious conservative, gun rights advocate, and homophobe), then the Senators will pull the trigger and fire their filibuster. And, the filibusterers will moan… If the President hadn’t nominated an “activist,” or he hadn’t “nominated a partisan,” or he hadn’t nominated someone for his or her “empathy,” then “we” could have supported him. In short, we (the filibustering Senators) aren’t doing this because we want to …. the Devil Made Us Do It.

Thus much for accountability and taking responsibility. Opponents of the President could possibly attract more support if they would stop sounding like such weaklings, and be honest about their positions, without doing all the current window dressing and table setting.

desertbeacon.blogspot.com

>Coffee and the Papers: Green, Pork and Hams

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Green energy producers want an extension of the promotion tax credits beyond 2009, which could be a good deal for the windblown, sun-baked, state of Nevada. Rep. Shelley Berkley (D-NV) is pushing these proposals; our Republican representatives are finding excuses not to — Senator John Ensign (R-NV) is afraid that giving promotion tax credits to alternative fuel producers will reduce the subsidies for Big Oil, and Rep. Jon Porter (R-NV) is scared that one of the alternatives will be nuclear, and Nevada will get ‘dumped on.’ [LVSun] Rep. Dean Heller (R-NV) isn’t referenced in the article, even though he serves on the House Natural Resources Committee.

Poor Jon Porter? Molly Ball, contributes a piece “Democrats get early start with bashing of Porter.” [LVRJ] The DCCC is launching its five day radio ad campaign telling citizens that Rep. Porter voted against veterans’ benefits, and pay raises for active duty soldiers. Porter responds with the Bushian “this is old news…” rejoinder, and a ‘flip-flop’ voting against the pay raises before he was for them.
One could add that Rep. Porter didn’t vote on the passage of the Stem Cell Research Enhancement Act (S.5) [rc 443] and voted against the “Federal Price Gouging Prevention Act.” [rc 404] Interesting, how in the Review Journal, Democrats are criticized, while Republicans are bashed?”

Wounding the warriors: Rep. Robert Filner (D-CA) expects to have veterans testify before his House Veterans’ Affairs Committee this summer about the misdiagnosis of PTSD and the military’s disability review system. Filner accused the military of “purposeful misdiagnosis” and of misleading service members into believing that accepting a pre-service personality disorder as the root of their problems would still leave them with government help. “There were lies, real lies,” Filner said. [Army Times]

One person’s pork is another person’s project: Clark County is “earmarked” for a $212,000 wastewater treatment study in Overton, and $500,000 will be “earmarked” for Fallon’s attempt to make repairs to its wastewater treatment system. [LVRJ] Congressman Heller is careful to remind us that arsenic is a naturally occurring mineral — right, it naturally occurs in mining operations.

Bloated private bureaucracy? The Department of Homeland (in)Security decided to “save” tax dollars by privatizing its information analysis — so, the pricey consulting firm of Booz Allen Hamilton got one of those lovely contracts the Cheney-Bush Administration loves to hand out. Thus a $2 million dollar contract in 2003 grew to be 60 times that, and the employees hired cost $250,000 annually — about twice the pay of comparable government employees. [WaPo] The Washington Post has an instructive graphic illustrating how Booz Allen Hamilton turned a $2 million contract into arrangements worth $124 million. [WaPo]

Then there’s K-Town. The House Committee on Oversight and Government Reform heard testimony yesterday on how mismanagement “derailed the Department of Defense project to construct the Kaiserslauten Military Community Center at Ramstein AFB. An Air Force audit found there were no thorough project planning and design reviews, no plans to estimate of mitigate risks, no oversight of planning procedures, no pre-design validation reviews, and no follow up on 35% review comments to ensure they were properly incorporated in subsequent designs. [Audit pdf] The auditors found that these deficiencies resulted in 173 change orders which in turn created $6.1 million in preventable charges. [Audit pdf] And, that was just for the planning stage. In terms of schedule growth, improper payments to contractors, and the Air Force’s refusal to implement the audit recommendations, the story just gets worse. [Audit pdf]

A 2004 program approved by Congress to allow the IRS to privatize tax collection survived a challenge in the current House of Representatives that would have stripped the Treasury Department program and returned the functions to the IRS. “Since starting, the agencies have been assigned almost 38,000 cases and collected almost $20 million. The goal is to bring in more than $2 billion over the next 10 years. The IRS says it has set strict standards on the collection tactics to protect taxpayer privacy and prevent harassment. Visits to taxpayer homes are banned, as are late-night calls. But critics say tax collection is inherently a public function and inadequate IRS resources don’t justify handing over that job to private collectors. Besides the effort to curtail funding for the program, several bills have been introduced in the House and Senate to kill it outright.” [full article – GovExec]

The Administration is trying out sound bites? Tony Snow told reporters that the reason Congress is unpopular is because there’s a “strategy of destruction rather than cooperation.” [WaPo] The White House version of ‘cooperation’ holds that members of the staff can’t be questioned in public, won’t be quoted in a transcript, and can’t be deposed under oath. Try telling the county DA you’d be delighted to cooperate with his or her investigation but you won’t go to court, won’t agree to having your testimony transcribed, and won’t testify under oath? Senator Charles Schumer (D-NY) adds: “The president seems to be saying: ‘How can I stonewall? Let me count the ways,’” Schumer said. “Not since the Nixon administration have we seen a stonewalling strategy like this. I have no doubt it will backfire and it will not stand.” [The Hill] House Judiciary Committee chairman John Conyers (D-MI) is contemplating contempt citations because of the White House assertion of Executive Privilege. [Roll Call sub req]

Cultured Corruption: Commerce Bancorp’s CEO Vernon W. Hill will step down and the company announced it has settled two federal regulatory inquiries involving his activities with corporate insiders. [NYT] Jurors in the case of former Alaska state representative Tom Anderson have heard FBI tapes including information about sham companies established to funnel money from a Texas prison firm. [ADN]

Senator Jim DeMint (R-SC) stopped a proposed conference on the “long stalled” ethics and lobbying reform package, objecting to going to conference on the bill until the Senate adopts a set of rules on earmarks that don’t need House or presidential approval. DeMint has had a hold placed on the ethics and lobbying reform legislation. [Roll Call sub req]

The Free-market talkers are evidence of a “classic market failure?” [Alternet] “The Structural Imbalance of Political Talk Radio,” is stirring up the right-wing squawkers because its analysis flies in the face of conventional wisdom; Right-wing talk doesn’t dominate AM radio because of the magical hand of a functional free market, it dominates thanks to multiple market failures. Even worse, those failures represent a strong case for better regulation of what goes out on the public’s airwaves.” [CAP pdf]

Guantanamo Shuffle: 145 members of the House of Representatives sent a letter to President Bush asking for the closing of the prison at Guantanamo Bay. [McClatchy] The Supreme Court will review a case challenging the Guantanamo detentions. [WaPo]

It’s going so well? Unguarded Iraqi pipelines are easy targets for both thieves and insurgents. [McClatchy]

EPA ignores its own advice? The U.S. Environmental Protection Agency is proposing changes to the national standard for ground level ozone (aka smog) supporting a limit substantially lower than current standards, however not low enough to meet the 0.060 ppm level recommended by the EPA’s own Children’s Health Protection Advisory Committee. [OMBw]

The Supremes: While most of the attention has been focused on the “Resegregation now, resegregation forever,” ruling by the Roberts’ Court, [LT] [WaPo] the Supremes also overturned the venerable “Dr. Miles Rule.” Under the 1911 precedent “minimum retail prices established by manufacturers were deemed to be an automatic (per se) violation of the Sherman Anti-Trust Act. [Legal Times] The Brennan Center argues that the Court’s decision in FEC v. Wisconsin Right to Life permits “electioneering communications” and the steering of “millions of dollars of special interest money into campaigns. It will be the Wild West all over again,”…”In other words, under this ruling, an ad run two days before an election, criticizing a candidate, in the district, can be funded with unlimited corporate or union funds, as long as it mentions an issue.” [Brennan]

CREW has released its “Best Laid Plans” report showing how the Bush Administration ignored its own gulf coast hurricane planning. “Nevertheless, despite the comprehensive SLCHP, post-Katrina FEMA documents demonstrate that the plan was never implemented. On August 28, 2005, the day before Katrina hit, FEMA Deputy Director Patrick Rhode sent an email to Deputy Chief of Staff Brooks Altshuler and Michael Heath, Special Assistant to FEMA Director Michael Brown, with the subject line, “copy of New Orleans cat plan” stating, “I never got one – I think Brown got my copy – did you get one?” [CREW]

Just for the fun of it, try the Pew Research Center’s “typology” quiz to see where you fit in the Age of iPhone hype” … Quiz Here Are you an “Omnivore?” “Connector?” “Mobile Centric?” or, “Off the network?”

>No, we can’t: The Ledbetter Decision and the Fair Pay Act of 2007

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Lilly Ledbetter may have lost her case in the Supreme Court, but she’s gained some allies in the House of Representatives. Rep. George Miller (D-CA) commented that the decision in Ledbetter v. Goodyear Tire and Rubber Case, “…according to the Supreme Court, if a worker does not file within 180 days of the employer’s decision to set her pay unlawfully, she has to live with that discrimination paycheck after paycheck. This ruling will force Congress to clarify the law’s intention that the ongoing effects of discriminatory decisions are just as unacceptable as the decisions themselves.” [Gavel] [ELcom]

Beyond the obvious sex discrimination aspects of the case, lies another example of the decimation of the rights of supervisory employees under Republican governance. The bottom line may well be that the Bush Administration and its allies on the Supreme Court, are no more interested in the welfare of plant supervisors than they were in addressing issues faced when nurses and other caregivers were reclassified as supervisors. Evidently, only the needs of those in the corner offices and board rooms are worthy of the interest, and the protection, of the Executive and the Supreme Court. Ms. Ledbetter was, after all, a supervisor at the Gadsden, Alabama, Goodyear Tire and Rubber plant. If her rights as a supervisor can be successfully challenged by the corporation, one can only imagine the challenges that might be faced by line employees.

It does, indeed, take an extremely narrow reading of Title VII of the 1964 Civil Rights Act to decide that Ledbetter should have been able to determine when Goodyear executives decided to discriminate against her. The Act itself is very clear, “It shall be unlawful employment practice for an employer to …to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin...” [EEOC]

The timing in Ledbetter’s case illustrates the loophole Goodyear was able to exploit. She was hired at the Gadsden, Alabama plant in 1979, and for a few weeks her pay was the same as her male cohorts. Goodyear’s policy prevented employees from discussing supervisory wages with one another, so it wasn’t until 1998 that she discovered she was being paid less than all her male cohorts, even recently employed men with less job experience. She filed a discrimination charge with the EEOC less than a month after finding out what had been going on. Goodyear countered that her low pay was the result of poor performance as evaluated under the provisions of a 1982 company policy. However, Goodyear’s real “trump card” was that the “timely filing rule” (six month limit) meant to foster speedy resolutions and to prevent suits based on historic actions, decreed that Ledbetter could only present evidence of discrimination taking place after September 26, 1997. [Docket]

The core of Ledbetter v. Goodyear is “Whether and under what circumstances a plaintiff may being an action under Title VII of the Civil Rights Act of 1964 alleging pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.” [Scotus] Justice Alito’s decision for the majority carefully addressed that issue, and that issue alone.

Justice Alito’s majority opinion held that “because a pay setting decision is a discrete act that occurs at a particular point in time…” Ledbetter’s claim must be rejected. The decision is rendered almost incomprehensible by the attempts to explain why precedents that clearly point to a reversal of the 11th Circuit’s decision should not apply. The logic is tortured and the prose nearly obscurant.

Justices Ginsburg, Stevens, Souter, and Breyer dissented. Ginsburg’s dissent states, “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reason for those differentials.”

Ginsburg’s dissent also stretches the time frame by arguing, “...each payment of a wage of salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180 day charge-filing period, are not themselves actionable, but they are relevant in determining the lawfulness of the conduct within the period.” [scotus]

In short, the majority took the narrowest possible scope for their decision in Ledbetter, and then applied the narrowest possible interpretation of precedents (Morgan, 536 US 117; Bazemore 478 US 395; and Ricks, 449 US 250) to reach their conclusions. Ginsburg’s dissent incorporates a broader scope, and more general interpretation of the precedents most commonly cited by both the majority and minority on the Court.

The Ginsburg Dissent also offered some guidelines to the Congress. “Congress never intended to immunize forever discriminatory pay differentials unchallenged with 180 days of their adoption. This assessment gains weight when one comprehends that even a minor pay disparity will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.” Her final statement was more direction than guidance: “As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.” [scotus] (emphasis added)

Representative Miller has taken Justice Ginsburg’s advice, and introduced the “Lilly Ledbetter Fair Pay Act” H.R. 2831, on June 22nd. Miller’s bill takes Alito’s decision head on: “The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.”

The bill clarifies the timing on “unlawful employment practices,” saying: “For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” Thus knocking the slats out from under Justice Alito’s carefully parsed prose.

The House Education and Labor Committee took testimony on the bill including that of Mrs. Ledbetter on June 12th. The Chamber of Commerce, predictably, argued against the measure saying that Ms. Ledbetter was (1) asking for special treatment; (2) “frustrating Congress’ design for attempting to resolve such matters…without litigation; (3) that the rule was adopted to start the clock when discriminatory decisions were made, not when the consequences are felt; (4) therefore, causing “instability and confusion in the law.”

However, the talking point (without reference to the actual provisions of the bill) will no doubt follow the Chamber’s tocsin that the Ledbetter Decision was good because it “recognized the profound unfairness inherent in a limitations rule that would permit an individual to sleep on his or her rights for years, or even decades, before raising a claim of discrimination.” [Mollen CoC pdf] Clearly, Mr. Mollen, speaking for the Chamber, apparently didn’t read Justice Ginsburg’s dissent. However, that may not matter to Chamber of Commerce officials who will reduce their argument to a sound bite (“sleep on their rights … for decades”) in attempting to rationalize the effects of discriminatory practices, such as those of Goodyear.

The Fair Pay Act of 2007 is scheduled for a mark up session at 10:30 a.m. on Wednesday, June 27, 2007.