Friday, November 27, 2009

Finding confirmation in Climatequiddick

The reaction of bloggers and pundits to Climatequiddick - the hacking and disclosure of e-mails sent and received by climate scientists at East Anglia University - follows two unfortunate patterns.

On the right, we hear folks proclaiming the end of the debate about anthropogenic global warming. They say, as I heard local talk show host Mark Belling claim, that claims of AGW have been shown to be based on "fraud." The e-mails are significant, but surely they don't do that.

On the left, we have denial expressed in the form of accusing "denialists" of "lies" and "ignorance" resulting in a failure and refusal to understand the supposedly innocuous content of the e-mails, which - despite references to tricks and suppression of opposing views - actually reflect scientific integrity. The hack is a nefarious plot to subvert the Copenhagen summit.

For the most part, neither group has the expertise - or is willing to take the time - to understand what they are talking about. I, for example, can't really say whether ignoring recent measurements of tree ring density in northern latitudes because they don't fit into certain models concerning the relation between such density and temperature is right or wrong.

But, being a reasonably informed observer of the global warming debate, it does seem to me that the e-mails reflect an ongoing problem with the matter of AGW. In my view, the most intelligent "popular" writer on the subject has been Jim Manzi.

Manzi, in short, makes the following points. First, is that the process claimed to result in AGW is based on sound physics. Increased atmospheric carbon could result in increased temperature. Second, it is by no means clear that it will do so because of many confounding and countervailing elements. Third, it is, therefore, virtually impossible to "predict" the fact or extent of warming. It makes far more sense to speak in terms of probabilities. Efforts to develop predictive models based on the historical record are particularly problematic because they are essentially unfalsifiable and, by certain defintions, cannot be "science." If we find data that contradicts the model, we can simply tweak the model ("hide the decline") until the data fit. What we can't do is run an experiment in which history is reconstructed under different conditions and see how often the model fits the data. Fourth, concern over AGW is prudent but it is unlikely to be the existential crisis that it is claimed to be and it is not clear that the best policy is abatement rather than accomodation. (Manzi does recognize that a small chance of a bigger problem requires a policy response but not the economic retrenchment that has been the typical proposed response.)

In that context, the e-mails become highly problematic - not because they "disprove" AGW - but because they reflect a rigid and unscientific commitment to orthodoxy. As Manzi points out, paleoclimatology is more like economics and political science than physics and chemistry. It is unlikely ever to achieve the certainty that we associate with certain questions in hard sciences and, therefore, the dogmatic commitment reflected in the e-mails is hard to see as frustration with those who won't accept the obvious and seems to reflect a set of closed minds.

This seems particularly so in the case of the website RealClimateChange (from which the Climatequiddick "deniers" seem to get their talking points). It doesn't read like most academic blogs. It is full of hyberbole, name-calling and smack talk.

The problem can't be assumed away by structuring the question as "selfless" defenders of the climate against self-interested industrially funded hacks. There is money to be made on both sides of the climate debate. That scientists might get lost in commitment to claims about the power of their discipline (here that science can predict the climate) and to their previous positions is a very well known - and very human - phenomenom.

Tuesday, November 24, 2009

Talk Among Yourselves

Ilya Somin has an interesting post over at the Volokh Conspiracy on right wing populism. It's not so bad, he says, or at least it could be worse. Somin is a libertarian and is cheered by the idea that conservative populism has tended to emphasize limited government over what he would view as a dangerous aggrandizement of government power. He writes:

On balance, however, the positions taken by the right-wing populists on these issues are basically simplified versions of those taken by the most sophisticated libertarian and limited-government conservative economists and policy scholars. There has been relatively little advocacy of strange, crackpot ideas or weird conspiracy theories. Indeed, efforts to paint the Tea Partiers and others as merely closet racists usually have to rely on unsupported claims about “unspoken” assumptions and subtexts.

Of course, he notes that right wing populist "rhetoric is oversimplified, doesn’t take account of counterarguments, and is unfair to opponents. But the same can be said for nearly all political rhetoric directed at a popular audience made up of rationally ignorant voters who pay only very limited attention to politics and don’t understand the details of policy debates." In other words, the stuff you hear at Fighting Bob Fest isn't any better.

I don't buy Somin's argument about the disconnect between social conservatism and limited government, but I think he has a point. Could we say, however, that there has been a similar moderation in left wing populism? It is also "oversimplified, doesn’t take account of counterarguments, and is unfair to opponents" but aren't the hard left fantasies of the sixties a thing of the past?

Sunday, November 22, 2009

Shark in the Cities

Over the weekend, the the Murphy Institute for Catholic Thought, Law and Public Policy at the University of St. Thomas Law School in Minneapolis hosted a conference entitled "Realism in Christian Public Theology: Catholic and Protestant Perspectives." It was an interdisciplinary conference bringing together law professors, theologians, ethicists and political scientists. I spoke on Friday, presenting a paper entitled "Christian Realism, Subsidiarity and the Economic Crisis."

The point of the paper is that the economic crisis - or really any crisis - presents a danger for the makers of law and policy. They may overreact both in terms of "fighting the last war," i.e., overemphasizing whatever is thought to be the present danger, or in seeing the crisis as an opportunity to remake society, i.e., to usher in a Kingdom on earth.

My argument is that there are two important theological concepts that can at least help us avoid this. The first is the Catholic notion of subsidiarity. i.e., the idea that a higer order should not do what a lower one can do for itself. I qualify that idea by arguing that subsidiarity is not simply a principle of jurisdiction but a recognition of the moral importance of human agency. Law and policy should help people and the associations that they form exercise freedom and creativity. It is, I argue, intertwined with the notion of solidarity, i.e., the imperative of concern for all persons.

This can have implications for both "liberal" and "conservative" positions. If we are to have George W. Bush's Ownership Society, ownership must be more than a theoretical possibility. Social assistance that is conservative must also be compassionate.

Health care reformers ought to remain mindful of the need for innovation and the moral value of individual choice and of human life. Efforts to fight global warming should not forget that much of what has improved the quality of our environment was not developed by centralized command and direction.

The second helpful theological concept is Christian Realism, a broad and sometimes amorphous body of thought associated with the Lutheran theologian Reinhold Niebuhr. I take two things from Niebuhr. The first is the call for Christians (but this could apply to persons of other faiths as well) to engage the world but to do so as they find it and not as they wish to be. The second is to recognize that human beings are sinful and broken and that efforts to, in the words of Bill Buckley, "immanentize the eschaton" are almost certain to fail and likely to bring unforseen danger.

Again, there are lessons for both conservatives and liberals. We ought to have known that efforts to create democracy in countries that had never been democratic would be harder than we expected. This is not to say that the wars in Iraq and Afghanistan were necessarily wrong, but we should have expected the unexpected.

On the other side of the aisle, President Obama claims that Niebuhr is his favorite philospher and he seems to understand the tension in Christian Realism between the call for engagement and the admonition to humility. But, as William Schambra explains in the inaugural issue of the journal National Affairs, Obama also seems to be what Daniel Patrick Moynihan called a "Policy President." He is in the tradition of early twentieth century Progressives who believed that "everything is related to everything" and that, as a consequence,"there are no social interests about which the national government does not have some policy or other."

Just as importantly, the policy approach eschews the notions of divided government and limited powers - as well as the rough and tumble of politics - because it will tend to prevent finely tuned comprehensive reform driven by technical experise. As Schambra puts it:

Echoing Moynihan's understanding of the implications of the policy approach, Obama suggests that tackling only isolated pieces of the problem, or trying to solve only one problem at a time, will merely introduce further distortions into what should be treated as a unified and coordinated system. A comprehensive policy approach will enable us to take maximum advantage of natural- and social-science expertise, displacing expensive or ineffective local practices by spreading system-wide those programs that have proven to be more effective and less expensive, as documented by thorough research and experimentation.

Of course, the "top down" nature of this approach raises subsidiarity concerns. But Realism also suggests that we view it with a critical attitude. During the campaign, President Obama suggests that we could create a Kingdom right here on earth. Realism suggests otherwise.

This doesn't mandate any particular policy approach. As the Popes have frequently said, the Church has no models to propose and God is neither a Democrat nor a Republican. Perhaps Obamacare - or something like it - can be justified in these terms. My modest suggestion is that subsidiarity and Christian Realism are useful heuristics.

Cross posted at Marquette University Law School Faculty Blog.

Saturday, November 21, 2009

How Not to Handle Divorce

While there is obviously a widely reported matter that prompts this post, it's really not about them other than whatever concern we may have for the people involved. No politics here. Please.

I have only ever represented one divorce client, but I get a lot of requests for initial advice on divorce and referrals to a divorce attorney. I don't claim to know a lot about it, but I am absolutely certain that I know one thing - from talking to other lawyers and from the experience that I and my friends and relatives have had on the matter. There should be a strong presumption against fighting over matters to do with the children. No matter how much your ex or what he or she has done to you rankles, the thing that you will forever regret is exacerbating the harm that the fact of divorce (which can't always be avoided) does to your children. Try not to fight over custody or placement. There is, for most of us, no amount of money that will make that OK.

And don't - really don't - make your divorce a public soap opera. This will not help you maintain the ongoing relationship with your your ex-husband or wife that will be necessary to shepherd your children to adulthood. The infidelity of a spouse hurts, but, even if it must end a marriage, the pain of a child whose home is disrupted is more important and demands that Mom and Dad conduct themselves in a way that will minimize it, i.e, that will allow the two of them to act together as parents and will allow their children to honor both mother and father.

Thursday, November 19, 2009

Yet Another Post on Civility

I don't often pull comments to a previous post into a new one, but I feel compelled to do so by a comment posted by my WI-Interest editor, Marc Eisen, a lefty who, while he does many other things, has also been hired by a conservative publication (edited by the dread Charlie Sykes!) and for whom I have come to have a great deal of respect (in part because, in addition to doing the normal writerly scrutiny, he challenges my reasoning). Marc and I are headed for a showdown fueled by a few adult beverages in the near future. I think it will be great fun.

Marc thinks the ad on Reuben Mitchell was brutal and awful and illustrative of a degradation in our political discourse. While I don't think (as some do) that it defines Mike Gableman (about whom I have other sources of information), I don't disagree. But there are some additional things to be said.

The first is the problems presented by this type of ad is not unique or new. Our friends on the left don't want to see the demagoguery in their own messages. Spots accusing George W. Bush of indifference to the racially motivated murder of a man in Texas or suggesting that John McCain was advocating a huge middle class tax increase were despicable. Ads and robocalls sponsored by opponents of the Wisconsin marriage amendment were, by any measure, explicitly designed to mislead. Mike Gableman should not have run that ad, but he is hardly the first candidate to allow his consultants to get the better of him.

Campaigns are a bit like fist fights. Remember that, in the Gableman-Butler race, pro-Butler ads were run by independent organizations suggesting that Gableman was soft on sex predators and portraying him as a clueless, ethically challenged bobblehead.

So if Marc's point is that our political discourse has become degraded, I agree - although I am not sure that this is new. Political slander has a long history.

In the local blogosphere, there is very little engagement. Folks think that the value in a blog is the extent to which it validates and is validated by the like minded. So they take opposing arguments out of context or restate them inaccurately and in bad faith. "Shorter" Esenberg is a way to avoid confronting what Esenberg has to say. Bloggers crow about how silly and stupid and corrupt the "wing-nuts," "teabaggers" or "moonbats" are.

I don't mean to dismiss anyone who has ever had a little fun at the other side's expense. A little political smack is fine and there are certainly folks on both sides of the political spectrum that are deserving of ridicule, but there is a world out there with a full spectrum of colors. To ignore that is to miss something.

There are literally no ethical standards among political consultants who can, with some credibility and justification, claim that they aren't going to play by the Marquis of Queensbury rules while their opponents do not.

Marc wonders if "this corrodes the democratic spirit, makes voters cynical, and serves as a warning shot to citizens to not offer themselves up as candidates for fear their reputations will be destroyed in a lying 30-second commercial?" I think it does. When I was approached to run for public office, I worried about that alot although it is not the reason I decided not to run.

But that brings us to the second problem. I don't trust the state - i.e., the very politicians who offend - to fix it. While I am not prepared to say the the First Amendment leaves no room to sanction false political speech, I tend to think that room ought to be fairly small. It seems likely that the cure will turn out to be worse than the disease.

Tuesday, November 17, 2009

The State House Comes to Milwaukee

1. Barring some unseen development, it seems highly likely that two Milwaukeeans will square off in the race for Governor. Very few Governors have been from Milwaukee. The last, I believe, was Julius Heil, elected in 1938. And there were few before then.

2. This seems to me like an unusual matchup of two relatively personable and "cool" (in the McLuhan sense of being less obvious and more detached from the fray) candidates. Folks like Doyle, Loftus, Chvala, Garvey and even the garrulous Thompson were much more combative and tempermentally partisan. Going negative will be a challenge for both these guys.

3. It may be that the winner will have to be perceived as "from Milwaukee" but not "of Milwaukee," i.e., not associated with the more general view of Milwaukee as being a ungovernable and unsafe morass. Both candidates will have something to say on this, but, given what I expect will be the salience of fiscal issues, I suspect that Walker has the early advantage.

Lies and the Lying Candidates Who Tell Them*

* It turns out to be Al Franken.

For those of you interested in the legal intricacies, I have a post on the Gableman recommendation up at the Marquette University Faculty Blog. But here at the old political blog, I'm wondering if those who are upset by the recommendation would really be happy with the implications of judicial review of political speech.

Chapter 60 of the Supreme Court Rules applies only to judicial candidates, but it is not inconceivable that legislatures would pass similar laws sanctioning false statements in other types of campaigns. In fact, Wisconsin has a law that makes it unlawful to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election.” That law was used for mischief last fall, although, at least under present interpretation, it does not provide a civil remedy.

At first blush, this may seem admirable. Why should there be a constitutional right to lie? The problem, of course, is that a lie is in the eye of the beholder. Local blogger Jay Bullock, it seems to me, regards many things as "lies" that are either contested questions of fact, matters of opinion or assertions that the speaker believes to be true. Determining whether a statement is false can be difficult. The three judge panel in the Gableman case could not agree on whether the statements at issue in that case were false. Figuring out whether the speaker knew it to be false is even tougher. That Justice Gableman agonized over running the ad before deciding to run it certainly could support an inference that he did not believe it was false.

In the past, I have used the example of Obama's allegation that John McCain's health care plan would result in the biggest middle class tax increase in history. I think that was objectively false. McCain would have eliminated the tax deduction for employer provided health care, but provided a tax credit that would have eliminated the additional tax for all but a handful of people. Was this a knowing lie?

Here's another example. Al Franken and the Democrats are pushing what they call an "anti-rape" provision in a defense bill and accusing Republicans who oppose it of wanting to sweep allegations of rape under the rug. What it actually does is prohibit certain government vendors from entering into contracts with their employees providing for arbitration of certain types of cases including, but not limited to, allegations of sexual assault. But those allegations - because they involve criminal conduct - are probably not subject to an arbitration provision and are certainly subject to prosecution notwithstanding the validity of any arbitration provision. The whole thing is a very cynical attempt to mislead. Should it subject Franken to prosecution?

Perhaps we could develop a taxonomy of lies in which certain statements could be identified that are so clearly and objectively intentionally false that sanctioning them would not be problematic. But the narrower the definition, the easier it will be to avoid. More to the point, litigation then becomes - if it hasn't already - another front in a political campaign; one that continues (and that can be used to hobble a successful candidate) long after the voters have spoken.

Monday, November 16, 2009

Shark Returns

I was in DC at the end of last week to attend the National Lawyers Convention of the Federalist Society for Law & Policy Studies. It's always a great meeting with great panels presenting a diversity of views. That's something that folks who view the Federalist Society as the Opus Dei of the legal profession don't understand. (They don't understand Opus Dei either, but that's another matter.)

For example, on a panel discussing the relationship between capital and labor, we heard from two conservatives, Amity Schlaes and Todd Zywicki, But we also heard from Harold Meyerson of the American Prospect and Damon Silvers of the AFL-CIO. This is standard practice at FedSoc events. One of the more interesting discussions was a presentation by Burt Neuborne, a prominent liberal law prof at NYU, of his recent paper advocating a structural reading of the Bill of Rights (to, in effect, read the document in the manner of a poem)and Randy Barnett's thoughtful response.

It's also a great opportunity to draw energy from and connect with national figures and folks with similar interests around the country. I had, for example, the privilege of sitting at dinner with Abigail and Stephen Thernstrom and was able to discuss the possibility of the two of them doing an event at Marquette.

But, because I was there, I wasn't here to blog on the Gableman decision or the decision to try certain Guantanomo detainees in New York or Tom Barrett's decision to run for Governor. Watch this space for more.

Tuesday, November 10, 2009

Hatred in the Name of "Compassion"

I am sure - or at least I suppose - the Chris Liebenthal is a decent enough guy in real life. Loves his family. Is kind to his friends. Doesn't kick puppies.

What is it, then, in politics that prompts this kind of inhumane nastiness. If the point is that Sarah Palin, in asking a normal human question, "why us" is supposed to have demonstrated that she is unaware that her child's birth was "caused" by her age, his comment is both a stretch and, in and of itself, reflects ignorance. Although the likelihood of a Down's child increases dramatically with age, it is still the case that less than 3% of live births at the maternal age of 44 are of babies with Downs.* She might, in a moment of anxiety about what will follow, wonder why it had to be her and her husband who drew the short straw.

And, of course, he misses the point of the story which is her husband's response. There is, he said, no reason that it could not be us and, in the end, we need to accept that. And that's what they did. The point is not that they cannot accept the consequences of what Liebenthal calls their "irresponsible actions (which, as far as I can tell, was marital intimacy), but that they should - and did - do precisely that.

But, beyond that, what is it about political disagreement that causes people to assume they have license to treat others with disrespect and hatred? Would Chris Liebenthal say that to a woman - any woman - that he knows? Tell her she is stupid because has a normal reaction to a difficult cirtcumstance? I doubt it and, if I am wrong, he ought to get out of the social work business.

I can anticipate the excuses. Sarah Palin supports policies that Chris Lieberthal thinks are bad so he can say whatever he wants about her. Certainly reasonable people can not disagree about whatever Chris Liebenthal happens to think is right.

"There are conservatives who do it too." I'm sure there are, but I don't (at least I try hard not to) and I don't see much of it among the writers and bloggers that I read. But the fact that some conservatives treat liberals in the same way that Chris Liebenthal thinks he can treat Sarah Palin only underscores my question. It takes an enormous amount of intellectual arrogance to think that those you disagree with are idiots or immoral. It poisons the public debate and ... more than that ...

... it's boring.

*His suggestion that a Down's child could be the result of the youthful marijauna use that Sarah Palin is meritless. Yeah, marijuana - particularly if used during pregancy (but I doubt that even the Governor of Alaska was getting baked in the state house) - is associated with some birth defects, but that doesn't "explain" what happened or even make it likely. If it did, my whole generation would be raising Downs kids.

Monday, November 09, 2009

Public Financing of Supreme Court Races: The Legislature Whacks A Mole

In a forthcoming article in the Harvard Journal of Law & Public Policy, I argue ( the metaphor is not original with me) that campaign finance reform is like a game of Whac-A-Mole™ in which the moles always win.

The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent "pro-criminal" or displaying photos of he sex predators that he did not send away for a long enough time.

The bill doesn't restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These "matching" public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.

I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate's speech rights.

This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.

But I don't think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state's interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy - at least during election season - to be funded with regulated contributions.

But Wisconsin hasn't done that, suggesting that it does not see express advocacy funded with "soft money" as presenting a threat of corruption. If that's so, then it's interest in providing additional public funding in response to independent express advocacy is - presumably - to level the playing field.

The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions - perhaps eliminating the distinction between express and issue advocacy by independent parties.)

Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don't like. That's what most of them do already.

So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage "issue advocacy" which, in practice, means attack ads.

Virtually all efforts at campaign finance "reform" are swamped by their unintended consequences. Money, like water, seeks its own level.

But, in fairness, although the bill will do nothing about independent expenditures, it's not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn't buy much in a state wide race, there will be candidates for judicial office who can't raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.

But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.

So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge's campaign committee "no.") But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.

Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.

The moles win again.

Cross posted at Marquette University Law School Faculty Blog.

Sunday, November 08, 2009

Green Bay Agonistes

You can occasionally see the precise moments when Packer coaches lose their jobs. For Bart Starr, it was when he stood with folded arms and sat on his timeouts while the Bears ran down the clock and kicked a short field goal to knock the team out of the '83 playoffs. Ray Rhodes did the same thing against the Panthers.

Yesterday, Ted Thompson lost his job (there really is no need to wait until the end of the season)and Mike McCarthy will need a miracle to keep his. While I believe that Aaron Rodgers is a star in the making, I continue to believe that Thompson threw Favre under the bus a year too early. But that's not the problem.

He knew he had major problems on the offensive line and did nothing. He knew that he did not have the players (in particular, people that can pressure the quarterback from the linebacker position) to play the 3-4 and he did not do enough. (He did draft Clay Matthews.) While he has done a nice job of drafting in the lower rounds, he can't hit on the first pick to save his life. (Matthews, being a possible exception, although he was the second pick in the first round.)This has resulted in a lack of impact players. He has allowed unspent cap dollars to collect interest.

McCarthy is not in much better shape. You should have seen some improvement in the offensive line play by now. Rodgers should be making quicker decisions by now. The special teams shouldn't still suck.

It's not so much that they lost to Tampa Bay. Any team in the NFL can beat you. It's that the same things keep happening again and again. These guys will be lucky to make .500.

Shame on President Obama

There are some criticisms of Barack Obama that go too far. For example, I did not share the outrage about his belated reference to the Fort Hood shootings. Yes, it was tone deaf, but that's about it. But his decision not to travel to Berlin for the twentieth anniversay of the fall of the Berlin Wall is more than tone deaf. This was one of the most significant and improbable events of the past fifty years; brought about, in large part, by constancy in American policy. To stay away is to send a message and it is the wrong message. Whether he seeks to placate the Russians, repudiate American exceptionalism or refuse to acknowledge a Republican accomplishment, rejecting what brought about one of the most remarkable and peaceful victories over tyranny is shameful. For the winner of a faux peace prize to ignore one of history's singular triumphs for peace is an embarassment.

Wednesday, November 04, 2009

Myron Gordon, R.I.P.

I only really knew Myron Gordon as a judge on senior status and tried only one case before him. It was a challenge by the NAACP to the method of electing judges in Milwaukee County. The plaintiffs alleged that county wide elections of judges denied black voters the opportunity to elect candidates of their own choice and sought election of judges on the basis of sub-county districts. We represented the Wisconsin Judges Association who had intervened as defendants. They did not want to be elected from smaller districts in which voters might not appreciate the array of considerations facing a judge. I remember, in particular, the testimony of one of our client's members who said that he did not wish to depend only on his neighbors in a North Shore suburb for reelection. He felt that it would make it very difficult for him to give a defendant from the inner city the benefit of the doubt.

At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I'd like to think that events - subsequent successes by black candidates on a county wide basis - have validated his judgment, but I may not be the best one to make that judgment.

Judge Gordon wasn't - on the bench - a warm person. He was demanding. He expected good lawyering and strove to deliver good judging. He was one of the first judges in the district to impose time limits on trial lawyers. Although he occasionally sliced that loaf a bit too thin, he was right in recognizing that a command to brevity concentrates the mind.

Yet he wasn't unreasonable. It was not about his calendar and how delay made him look. It was not about how much more he knew than the lawyers before him. It was about doing justice in a way that people had a right to expect and about which we involved in the process could be proud.

I think he made the lawyers before him better. I think he made himself better. I know that, in the few instances when I appeared before him, he made me better.


Cross posted at the Marquette University Law School Faculty Blog.

For Tom Barrett, the Challenge of Staying Put

George Lightbourn had a great column in yesterday's Milwaukee Journal Sentinel. His point is that Tom Barrett must choose between running for Governor and a mayoral takeover of the Milwaukee Public Schools. The point is that a mayoral takeover, if it is to accomplish anything, must shake up the status quo and afflict the organized interests that have dominated the making of policy in MPS.

Mayoral control won't do that in and of itelf. The idea is that school board elections attract low interest and turn out. In those circumstances, special interests (defined as organized interests with an intense interest in school policy) will dominate. Because more people care about election of the mayor, transferring control to his or her office will make school policy more responsive to the public at large.

Doing that well will almost certainly require upsetting some interests that are rather powerful in Democratic politics, including the teachers' union. If the Mayor must pull his punches in pursuit of an office he does not yet hold, the takeover will not work as intended.

Although Tom Barrett as Mayor would certainly be subject to political pressures, an entrenched incumbent may be better able to deflect them than an aspiring gubernatorial candidate.

I have no idea whether Barrett will run and, of course, most Republicans would prefer that he not if only because there does not seem to be another credible Democratic candidate around. But it remains the case that Barrett, if he stays at City Hall, may have a chance to do something of far greater significance than anything he could hope to accomplish as Governor.

Monday, November 02, 2009

Not our fairy tale

I knew it was a high risk proposition but we decided to go to yesterday's Packer-Vikings game. It was one of those things that could have gone better.

Brett Favre has certainly got his validation in that he is still an outstanding quarterback. But Aaron Rodgers showed that - today - he is just as good, if not a little better. Favre is making better decisions than he ever did as a Packer but there were very few years (if any) in which he had the supporting cast that he has now. Rodgers could, I suppose, make some decisions more quickly but he matched Favre blow for below without the advantage of a hall of fame running back and a competent offensive line.

But that brings us to Ted Thompson's real sins. It was criminal to go into this season with that offensive line. They played better in the second half (and Rodges may have been making better reads) but they cannot run block and are porous against the pass rush. You cannot build a team today while almost completely abjuring free agency. Give Rodgers time to throw and there are few teams he couldn't pick apart.

But there is more than personnel at work here. Much of offensive line play is coaching. Avoiding penalties is coaching. I think it remains an open question whether moving to the 3-4 was wise with the players this team has.

Whatever the truth of the latter point, I would love to see stats on how long Favre had to throw as compared to Rodgers. I am not sure that Favre was hit until the fourth quarter. He had forever to throw and boulevards for passing lanes. Rodgers was sacked six times and avoided at least that many with his mobility.

The difference in this came was not Brett Favre. It was the offensive lines and Percy Harvin. But Favre is playing at a Pro Bowl level.