Sunday, May 31, 2009

Empathy and sympathy II

This is a follow up to this post.

Cartoon from the Star Tribune

Before moving on to the real topic of this post — the efforts of conservatives to make sympathy for one white guy the basis to keep a candidate off the Supreme Court — let’s assume for one tiny moment that Sonia Sotomayor is the Hispanic Homer that conservatives say she is. (By the way she isn’t; she wouldn’t have gotten anywhere near the Second Circuit Court of Appeals in the environment of the last thirty years if she was.) So what? It’s not as though we haven’t had two hundred plus years of White Guy Homers, or Business Homers. Recently, there are even Gun Homers! Talk about your identity politics. But let a minority group member — one who’s not a Republican, anyway — get the nod and the entire right wing gets the vapors.

As Spot has observed, it is really moving to see how so many conservatives have become civil libertarians and so dedicated to rooting out bigotry so quickly.

Let’s turn now to Frank Ricci, the centerpiece of winger hysteria about the Sotomayor nomination. Frank is by all accounts an admirable guy. A sympathetic guy. He’s a curious knife to use to try to gut the Sotomayor nomination.

So here’s the deal with Frank: he’s dyslexic, and he worked really hard to pass the lieutenant’s exam for the fire department in Connecticut for which he works. But the city of New Haven threw out the results of the exam because it resulted in no promotions for blacks. New Haven didn’t hire any minority members instead of Frank. It just said, “We have to start over.” Fire departments all over the country have been the subject of suits for employment discrimination on a variety of grounds: unfair and unnecessary tests of strength, size, you name it. And the departments have lost their share of them.

Maybe New Haven was damned if it did, and damned if it didn’t: it was either a suit by the white guy or by the black guys who have also been busting their humps working in the department for years. And maybe counsel for the city said, “You know, we’ve looked at this test, and we can’t say definitively that it selects the best people to be a lieutenant.” That is probably, in fact, what happened.

Update: See this post at SCOTUSBLOG for more discussion of this point.

Note that Frank can take the test again, just like anybody else. Preferring not to hit the books, however, Frank sued the city of New Haven, alleging employment discrimination. The federal district court dismissed Frank’s case, and a Second Circuit panel that included Sonia Sotomayor, affirmed.

Here’s what Charles Krauthammer says about the case and the upcoming hearings on Sotomayor’s nomination:

When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling "facially race-neutral."

Let’s lay aside Krauthammer’s incorrect assertion that Frank Ricci didn’t get a promotion because of his race. (Nobody got one.) It isn’t clear at all how empathy entered into the case. Remember, this isn’t a case of Frank Ricci against some unnamed inferior black guys; it’s a case of Frank Ricci, disgruntled applicant against the city of New Haven concerned about giving everybody a fair shot at promotion. Fair is the key word here — again, against the backdrop of decades of litigation over discriminatory fire and police department tests.

Perhaps Sonia Sotomayor and her fellow judges were able to have empathy — that is walk in the shoes of — the city of New Haven just trying to be fair and nondiscriminatory and comparing that to a disappointed Frank Ricci, who, as Spot mentioned before, can take the exam again. But Charlie really has a bee in his bonnet about this “empathy” thing:

Empathy is a vital virtue to be exercised in private life -- through charity, respect and loving-kindness -- and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law.

But, Charlie, if the law cannot be a respecter of persons, why do you spend so much time laying out Frank’s sorry tale?

Ricci is a New Haven firefighter stationed seven blocks from where Sotomayor went to law school (Yale). Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools ill-prepared to address his serious learning disabilities. Nonetheless, he persevered, becoming a junior firefighter and Connecticut's youngest certified EMT.

After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings. When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day and, because of his dyslexia, hired someone to read him the material.

He placed sixth on the lieutenant's exam, which qualified him for promotion. Except that the exams were thrown out by the city, and all promotions denied, because no blacks had scored high enough to be promoted.

The answer is, of course, because Charlie wants you to feel sorry for Frank, to pity him, to have sympathy for him. He’s trying to sandbag you. Unlike empathy, a word Charlie and Co. rail against because Sonia Sotomayor used it, sympathy has no place in decision making in the law. Judges tell juries to avoid it. Here’s a pattern jury instruction used in federal trial courts in the 7th Circuit (a thump of the tail to MNO for the link):

Members of the jury, you have seen and heard all the evidence and arguments of the attorneys.  Now I will instruct you on the law.

You have two duties as a jury.  Your first duty is to decide the facts from the evidence in the case.  This is your job, and yours alone.

Your second duty is to apply the law that I give you to the facts.  You must follow these instructions even if you disagree with them.  Each of the instructions is important and you must follow all of them.

Perform these duties fairly and impartially.  [Do not allow [sympathy/prejudice/fear/public opinion] to influence you.]  [You should not be influenced by any person's race, color, religion, national ancestry, or sex.]  [Spot’s italics]

The blindfold that Lady Liberty wears is to protect against sympathy, not empathy. As Spot’s prior post on the subject says, empathy for both parties is a key to being impartial: fair. As MNO ably points out, there are many cases where the law in not clear. The law is not clear in this case, regardless of what Krauthammer would have you believe. In fact, if the law was so darn clear in a given circumstance, there wouldn’t be a case at all.

Krauthammer, and Michael Gerson, and David Brooks, and all the rest, are trying to confuse the issue of what judicial decision-making is about. It is simple partisan skullduggery.

You’ve got to walk that Lonesome Valley

Sometimes, you have to walk it by yourself. Governor Pepsodent is finding that out:

In a sign that wounds remain raw after a bruising legislative session, only a handful of lawmakers have formally responded to Gov. Tim Pawlenty's request for ideas to help him balance the state budget under his controversial use of the so-called unallotment process.

More than a week after Pawlenty sent a letter to legislators asking that they respond by Friday, only 13 of the state's 201 lawmakers had written back. Just eight of 133 DFLers had replied as of Friday, suggesting that many are troubled by the Republican governor's bold move to unilaterally make cuts to balance the budget and seem content to leave the choices -- and the political consequences -- to him. [Note: this means that a total of five Republicans have put their shoulder to the wheel.]

The governor also put up a website soliciting suggestions from the public; he did get some suggestions there. Some of them are brilliant:

Since his administration created a website a week ago where citizens can send budget-balancing ideas, Pawlenty has talked publicly about the many people who have responded. As of Friday, according to a spokesman, more than 1,600 e-mails had been received -- and have included suggestions that Pawlenty reconsider state-authorized gambling as a way to raise money and even think about opening liquor stores on Sundays. Opening liquor stores, one e-mail said, would "create tax revenue. Create jobs. Save gas, as you wouldn't believe the [Minnesota] cars that line up at [Wisconsin] border towns waiting for the off sale [stores] to open on Sundays."

Governor Pepsodent doesn’t seem to need the Legislature to create a budget, so why should he need one to expand gambling or revise liquor store regulation? Come to think about it, why not authorize the sale of really big fireworks, too? Why, we might even get some revenue from that from Wisconsin! Come on, Tim! You can do it!

Update: Do you know what only five Republicans giving suggestions means? The Republicans are as afraid of Pawlenty’s shenanigans as the DFLers are disgusted by them. Spot says, if you have a Republican legislator, you should contact him or her to see whether the legislator has offered advice to the guv on cuts.

Further update: Has everyone contacted his or her Republican legislator to find out what advice the legislator has given the governor about cuts? Republican House members, who helped sustain the governor’s vetoes, like Keith Downey, should be questioned especially closely.

Saturday, May 30, 2009

Empathy and sympathy I

It is funny and superbly ironic, which is why conservatives miss it so entirely. In trying to derail the nomination of Sonia Sotomayor to become a member of the United States Supreme Court, her detractors criticize her because of her “empathetic” tendencies — empathy being one quality a judge must have, or ought not to wear the robe — and do so with a juvenile pitch to sympathy, an emotion that we do try to avoid in the courtroom. We’ll get to sympathy directly in a subsequent post.

Before that, however, it is useful to examine what empathy is. Here’s the basic definition:

Identification with and understanding of another's situation, feelings, and motives

Walking a mile in another’s shoes, in other words. Empathy is the ability to connect with other people; empathy is sine quo non to the application of the golden rule. As George Lakoff lays out in his recent book, The Political Mind: Why You Can’t Understand 21st Century American Politics with an 18th Century Brain, Viking Adult, 2008, empathy is now associated by cognitive scientists with something called “mirror neurons.” Plenty of other cognitive scientists are on to this, too.

For example, here’s Jack Brockman, writing in Edge: The Third Culture, introducing a post about V.S. Ramachandran’s writings:

Researchers at UCLA found that cells in the human anterior cingulate, which normally fire when you poke the patient with a needle ("pain neurons"), will also fire when the patient watches another patient being poked. The mirror neurons, it would seem, dissolve the barrier between self and others. [1] I call them "empathy neurons" or "Dalai Lama neurons". (I wonder how the mirror neurons of a masochist or sadist would respond to another person being poked.) Dissolving the "self vs. other" barrier is the basis of many ethical systems, especially eastern philosophical and mystical traditions. This research implies that mirror neurons can be used to provide rational rather than religious grounds for ethics (although we must be careful not to commit the is/ought fallacy). [Spot’s italics]

The law is an ethical system; it does not express society’s highest aspirations for people, but it’s a standard below which people are not supposed to fall. The aforementioned George Lakoff wrote an article recently about the consequences of a failure of empathy. Here’s an extended quote from the piece that appeared in Firedoglake in April of this year:

Should there be a commission to publicly investigate the use of torture by the Bush administration?

Pragmatic Democrats argue no, that it will divert our attention from all the other, positive things that have to be done.

I disagree. But not for the usual reasons, all of which are good reasons: Maintaining the rule of law. Punishing the criminal activities of the Bush administration. Beginning to reclaim our moral stature in the world. Refusing to accept the we-were-just-following-orders defense that must never again be tolerated. All good reasons. But there is one overriding reason behind all of the others.

It is crucial to understand why torture is so overpowering an issue. Not killing and maiming hundreds of thousands of innocent civilians in the shock-and-awe approach to Iraq. Not ignoring the horrors of Darfur. Not the thousands of gun deaths and maimings in America each year. Not all the deaths and illnesses that come from the denial of care by a private health care system that cares about profits over people. There are plenty of things to be outraged about. What is it about torture?

The clearest clue comes from Greg Mitchell of Editor & Publisher in his piece at Huffington Post, retelling the story of a female American G.I., Alyssa Peterson, who committed suicide after refusing to participate in the torture of Iraqi prisoners.

"The official probe of her death would later note that earlier she had been "reprimanded" for showing "empathy" for the prisoners. One of the most moving parts of the report, in fact, is this: "She said that she did not know how to be two people; she ... could not be one person in the cage and another outside the wire.""

Repeat: "She did not know how to be two people..." Reprimanded for showing “empathy.”

We now know from the study of mirror neuron systems in the brain that empathy is physical, a capacity built into our very bodies. It is what allows us to feel what others feel and appears to be the basis for human connection and the capacity to care about others. Our native neural capacities for empathy can be strengthened by how we are raised, or it can decay when empathy is not experienced — or we can be trained to develop neural circuitry to bypass natural empathy.

And now think again of Brockman’s question “I wonder how the mirror neurons of a masochist or sadist would respond to another person being poked?”

A good judge empathizes with every person who walks into the courtroom: the parties (all of them), the witnesses, and yes, sometimes even the lawyers, although they are usually at the bottom of the list. If a judge can’t empathize, the judge cannot be a champion of the ethical system called the rule of law.

Any trial lawyer, or one who has won some cases, anyway, will tell you that engaging the empathy of the judge or jury is a key element to winning any case.

The ability to empathize with the litigants (plural) is a necessary ingredient to impartiality; sympathy, as we will see, is not.

Next up: Frank Ricci and the sympathy vote.

Friday, May 29, 2009

Pssst, Admiral!

I know that sometimes it’s difficult to tell the difference between a civil rights organization that helps millions of people working under the slogan “Strengthening America by promoting the advancement of Latino families” and an organization best known for dragging men from their beds, cutting off their genitals, burning them, and then hanging them from trees and light posts based on rumors that they made eye contact with women of a different race, but don’t you think you might want to at least try, Admiral?

Wednesday, May 27, 2009

Don’t forget: DL tomorrow night

There are no guests scheduled for Drinking Liberally tomorrow night (the 28th), just an evening of refreshment and conversation, probably outside under the awing.

Regular time, six to nine or so, and regular place, the 331 Club in northeast Minneapolis.

Technorati Tags: ,

Unless white men are appointed to all jobs, we are bigots*

Growing up fatherless in a Bronx public housing project?
Summa cum laude from Princeton?
Editor of the Yale Law Review?
First Latina appointed to the Federal Bench in New York?
Appointed to the bench by a Republican President and elevated by a Democrat?
First Latina nominated to the highest court in the land?

In Kersten world, these accomplishments apparently make her uppity.

But you know what? Count me among those who think that she is a bit better than the white men out there calling her unintelligent, lazy, fat, unqualified, racist, an irresponsible spender, ugly, and arrogant.

*Title stolen (and modified) from Anonymous Liberal

Tuesday, May 26, 2009

Drinking Liberally autopsy edition: the video

Here are some video clips of conversations with Dane Smith of Growth and Justice, Liz Doyle of Take Action Minnesota, and Xavier Lopez-Ayala when they came to Drinking Liberally last week to discuss the just-ended session of the Minnesota Legislature.

Update: There was some good conversation that didn’t make the cut for this video. It was thirteen minutes long already, nearly a feature film on the ‘net. Look for additional, smaller, bits in coming days.

So it begins

President Obama has nominated Judge Sonia Sotomayor of the Second Circuit Court of Appeals as his first Supreme Court nominee, and as expected, those across the aisle didn't take long to begin the distortions. First one I saw this morning comes from a local blogger, who after making tasteless prison rape insinuations at the idea of Judge Sotomayor on the highest court in the land, gets to the point:
Sotomayor's take on judicial activism:

"Court of appeals is where policy is made…and I know, I know this is on tape and I should never say that, courts don't [makes scare quotes in the air] make law, I know [growd giggles as she regroups]. I know, I know, I'm not promoting it, I'm not advocating it, I know…

Not really [Mitch makes scare quotes in the air] condemning it, either, are [more scare quotes] we?

Now I'm pretty sure Mitch hasn't ever taken on any appellate cases, so let's take a look at what it actually is that appellate courts do. First and foremost, they make certain that the trial courts apply the law correctly. They sort out what lawmakers mean when they write the frightful stuff we read in laws drafted at 4:00 a.m. in the waning days of a legislative session. They work to give life to laws and constitutions drafted decades and centuries ago in light of what our world is today. To think that this happens in a vacuum devoid of policy considerations is folly. Sotomayor was describing what happens at every state and federal appellate court in the land, not announcing some radical plot.
Anonymous Liberal put it best:
Her point, which is unquestionably true as a descriptive matter, is that judicial decision making at the Court of Appeals level is more about setting policy, whereas judging at the District Court level is a more about deciding individual cases and disputes. And the reason for this is obvious. Decisions at the Court of Appeals level don't just determine the fates of individual litigants; they serve as controlling precedent for all District Court judges within that circuit. Thus any decision by a Court of Appeals becomes the policy of that circuit, at least until it's overruled by the Supreme Court (which is rare).

There is nothing remotely controversial about this. Cases get appealed to the Circuit Court level for one reason: because the answer to the question being litigated is not clear. When the law is clear, no one bothers to appeal (because it's really expensive). A Court of Appeals grapples with the difficult questions, the gray areas in the law, and ultimately issues rulings one way or the other. These rulings then become the policy of that particular circuit, serving as controlling precedent in future cases. This is just as true in the ultra-conservative Fourth Circuit as it is the more liberal Ninth Circuit.
(Emphasis added.) Courts of Appeals wouldn't be performing their function if they didn't think about the implications of their decisions beyond those of the immediate case.

But unwilling to leave it at one out-of-context, truthful description of a court of appeals doing the job it's designed to do, our local blogger hints what is going to be the crux of attacks on Judge Sotomayor during her confirmation process:
Rumor has it that Sotomayor is so far to the left on the Second Amendment, Amnesty and other issues that the Administration knows she can’t get confirmed, even with the libs' headlock on the Senate. Sotomayor is, so the theory goes, a campaign sop to Latinos.

I am fearful that this is going to be what we see from the minds across the aisle as they go forward in trying to do what ever they can to derail this nomination: rumor. Judge Sotomayor has taken part in exactly one short reported decision where Second Amendment issues arose. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009), involved the pro se appeal of a man attacking on constitutional grounds the New York state prohibition on nunchaku. The Second Circuit decision affirmed the trial court's rejection of Maloney's arguments and recognized that the Second Amendment limits federal, not state action. The Second Circuit based its decision on longstanding Supreme Court precedent and did not take any wild view of what the Second Amendment did or did not do. Apparently unwilling to read the per curium (that is, unanimous but not drafted by any specific judge) decision, we instead have our local blogger choosing to rely on rumor.

But the underlying point here is not gun control, it is what we can expect to see in the weeks ahead. Will we allow the debate to be set by a reliance is on unnamed, undisclosed “rumors”, or will we look at the opinions and articles the judge has written and the answers she gives at her confirmation hearings? Time will tell.

Monday, May 25, 2009

Bloated beyond recognition

There will be so much gas emitted today about Memorial Day. On a day that we are supposed to honor and grieve those lost to us in war, there will be far too many homilies to militarism with the “honored” dead waved in our faces like pom-poms. Words like this from King Banian, himself paying tribute to the vicariously blood-thirsty Mark Steyn:

Many widows (and some widowers) awake this morning to Memorial Day, whose spouses fallen understood the rest of [Revolutionary General John] Stark's more famous motto -- given late in his life from his Derry home -- "Live free or die: Death is not the worst of evils." It is a very basic reaction to force, to coercion.

We can be glad that General Stark survived whatever battles he fought to utter those words and that King Banaian has managed to survive all the battles he fought so he could repeat them.

However, let’s look at the real face of remembering soldiers who died in war:

widow 2 at arlington

*  *  *

widow at arlington national

(Both photos from the Washington Post)

Bellowing, public professions of patriotism, like ostentatious, public displays of religion, are, at their core, mere narcissism.

So, weep for those who died in our names, and for our sake’s, but never allow them to be used as cheerleaders for the next carnage that war’s acolytes urge upon us.

Update: And you might take a look at this by Cindy Sheehan:

As the plane was on the approach to John Wayne airport, the Captain came on the intercom to remind us all to "remember our brave troops who have died for our freedom." Even in this post 9-11 paranoid paradigm, if I wasn't belted in for landing, I would have popped out of my seat at 13D and charged up to the cockpit to let the pilot know that my son was killed in Iraq and not one person anywhere in this world is one iota more free because he is dead.

Sunday, May 24, 2009

Still crazy after all these months

Katherine Kersten is back - in form - in Sunday morning’s Star Tribune. Well, it just put Spot in mind:

Our dear Katie fears that the country has slipped badly while she was off the watch.

America's military continues to be the world's best, yet today we're losing the struggle for freedom on the home front. We're giving ground in the battle against that voracious devourer of freedom -- massive, intrusive central government.

Big government is not making these inroads by threatening or intimidating us. On the contrary, it declares its good intentions in warm, reassuring tones -- promising to assume our burdens, protect us from risk and enhance our well-being. [Katie is taking a little license, don’t you think, boys and girls, with what President Obama is proposing to do?]

The campaign to expand government's scope and influence is led by a president who is a master at manipulating this seductive message. Barack Obama declared his intention on Inauguration Day, when he vowed to "remake America." A skilled rhetorician, the president has couched his ambitions in words that resonate to American ears -- equality, empathy, compassion and social justice.

Yes, Katie, we must resist the call to equality, empathy, compassion and social justice. They must be stamped out! Utterly. If we don’t, here’s what will will happen – is already happening:

The consequences of central government's assault are just beginning to become apparent. Its first victims have been "greedy" bankers, financiers, and auto and insurance executives -- those classic Hollywood bad guys we love to hate. They fell for the siren song of massive government bailouts. Now, not surprisingly, they find themselves beholden to that same government.

It simply sickens Katie that people like Bernie Madoff and Joseph Cassano are the objects of scorn and their successors have been forced in to bankruptcy or receivership and are now beholden to the government. We should have just given them the money!

Of course, AIG would be the corpse that ate the economy if it had not been “rescued.” As it now stands, the figures that Spot recalls is that the government owns about eighty percent of AIG. There were no siren songs involved, just a string of frauds. Don’t you think that entitles the government – representing us – to exact a little oversight in return?

Conservatives as alienated and unloved as Katie are about the only ones who could describe “’greedy’ bankers, financiers, and auto industry executives” as “victims.”

Friday, May 22, 2009

We prayed to the Invisible Hand for help

And all he sent was a bunch of Austrian blighters. Stirling Newberry, a writer who was introduced to Spot by NBBooks, says as much at Firedoglake in The Depression that Hayek Built:

To read the British press is to realize how fundamental the failure the theory of libertarian economic thinking has been. In this theory, the wealthy possess a special insight into the allocation of capital, and governments should abandon their role in allocating effort to a small extremely wealthy elite. It was a theory adopted by Iceland, which was lauded for its open laws and "flat tax." It was adopted by Lithuania, and to a lesser extent, by Spain. One country that embraced this idea more than any other, was Ireland, which took neo-liberal policies as virtually a doctrine. It attracted 40% of all American direct foreign investment in Europe, which liked it's educated English speaking population, proximity to the UK, and low prices. For its part, the government of Ireland threw the doors open. As the Guardian reports by piecing together individual stories the plunge has been swift and dramatic. A new Irish Diaspora has begun, as the weight of debt and the utter absence of an internally driven capital system, leaves behind the husk of an economy.

What created this collapse was the pure corruption at the top.  A corruption seen in the expenses scandal now unfolding in Great Britain is destined to topple the ruling New Labor party -- as was seen in the borrowing binge of the very wealthy in Ireland. These two pieces are not unconnected: the culture of flowing money lubricated politicians, who naturally saw that its continuation was essential for their own secure life style. This is not an issue of left or right in the context of the age. There was no left, merely a right that wanted slightly more of the money to flow to socially useful causes.

You see, boys and girls, it really isn’t the Invisible Hand at all!

Phoenix Woman said that Austrian economics made her think of this from the Southern Poverty Law Center:

Ludwig von Mises Institute

The Ludwig von Mises Institute, founded in 1982 by Llewellyn Rockwell Jr. and still headed by him, is a major center promoting libertarian political theory and the Austrian School of free market economics, pioneered by the late economist Ludwig von Mises. It publishes seven journals, has printed more than 100 books, and offers scholarships, prizes, conferences and a major library at its Auburn, Ala., offices.

It also promotes a type of Darwinian view of society in which elites are seen as natural and any intervention by the government on behalf of social justice is destructive. The institute seems nostalgic for the days when, "because of selective mating, marriage, and the laws of civil and genetic inheritance, positions of natural authority [were] likely to be passed on within a few noble families."

But the rule of these natural elites and intellectuals, writes institute scholar Hans-Hermann Hoppe, is being ruined by statist meddling such as "affirmative action and forced integration," which he said is "responsible for the almost complete destruction of private property rights, and the erosion of freedom of contract, association, and disassociation."

A key player in the institute for years was the late Murray Rothbard, who worked with Rockwell closely and co-edited a journal with him. The institute's Web site includes a cybershrine to Rothbard, a man who complained that the "Officially Oppressed" of American society (read, blacks, women and so on) were a "parasitic burden," forcing their "hapless Oppressors" to provide "an endless flow of benefits."

"The call of 'equality,'" he wrote, "is a siren song that can only mean the destruction of all that we cherish as being human." Rothbard blamed much of what he disliked on meddling women. In the mid-1800s, a "legion of Yankee women" who were "not fettered by the responsibilities" of household work "imposed" voting rights for women on the nation. Later, Jewish women, after raising funds from "top Jewish financiers," agitated for child labor laws, Rothbard adds with evident disgust. The "dominant tradition" of all these activist women, he suggests, is lesbianism.

Institute scholars also have promoted anti-immigrant views, positively reviewing Peter Brimelow's Alien Nation.

So that’s where the Invisible Hand comes from! And it’s trying to strangle the “excess population!”

Sort of like Tim Pawlenty, right Spot?

Thursday, May 21, 2009

Little laboratory of horrors

Actually, that’s a little bit of a misquote. The title of Professor Sandy Levinson’s post at Balkinization is Newsnotes from our "little laboratories of experimentation.” Here’s the first two grafs:

Constitutional design buffs should certainly find much of interest in today's newspapers, especially with regard to the oft-argued role of American states as "little laboratories of experimentation." One state is offering us an example of American-style "constitutional dictatorship," while another demonstrates in spades the ravages of a dysfunctional constitution [California].

First, on "constitutional dictatorship," there is, somewhat surprisingly, Minnesota, where Gov. Tim Pawlenty, a favorite of the Republican right wing (assuming there is anything else than a right wing in the GOP these days) is apparently going to use all of his powers under the Minnesota [Constitution; others] have exercised such powers, but Pawlenty's exercise in unilateral government seems to be of a different magnitude. Perhaps we should view Minnesota as having the equivalent of a Weimar Constitution Article 48, the "emergency powers clause" that allowed the president to govern by fiat. Throughout the 1920s, it was invoked more than 200 times to respond to the economic crisis. Pawlenty is sounding the same theme, as he prepares to slash spending on all sorts of public services. The fact that this will increase his attractiveness to the Republican Right, for the 2012 presidential race that has already begun, is, of course, an added benefit, since one doubts that he is banking on a political future within Minnesota itself (which didn't give him a majority at the last election; he was elected, as was Gov. Rick Perry of Texas, only because of the presence of third-party candidates). One might also look forward to whether he will refuse to certify Al Franken's election to the Senate even after the Minnesota Supreme Court, like all other Minnesota courts, says that he has won. Whoever thought that Minnesota would be the leading example of a 21st-century version of "constitutional dictatorship" among the American states? [italics are Spot’s]

Professor Levinson is a constitutional law professor at the University of Texas.

Now, it may not bother you, boys and girls, to have your state compared to the Weimar Republic, but it does bother Spot. And it apparently doesn’t take an insider here in Minnesota to understand the governor’s motives.

Wednesday, May 20, 2009

If you wrote the story

If you wrote the story of Daniel Hauser in an English class where you were given the job of writing a piece of realistic fiction, you would flunk. It is too bizarre to believe. The latest twist is speculation that Daniel and his earth mother have fled the country. Having fled reality some time ago, this is perhaps a natural development, so to speak, in the plot.

Daniel is an “elder” and “medicine man” in the Nemenhah Band:

"My son is not in any medical danger at this point," Colleen Hauser testified at a court hearing last week. She also testified that Daniel is a medicine man and elder in the Nemenhah Band.

The who? An elder? A medicine man? Apparently, with this outfit:

Nemenhah was founded in the 1990s by Philip Cloudpiler Landis, who said Thursday he once served four months in prison in Idaho for fraud related to advocating natural remedies.

But boys and girls, for an upfront payment and a nominal monthly stipend for Philip Cloudpiler Landis, you too can probably qualify to be an elder and a medicine man:

Nemenhah members are asked to pay $250 to join and a monthly $100 fee.

Although Daniel probably got the junior high rates until just recently.

Speaking of junior high, did you know that Daniel was home schooled, boys and girls? Why is this not a surprise? Apparently, our young elder has so benefitted from the tutelage of his earth mother that he can barely read:

Not only could Daniel neither read nor understand the affidavit he signed saying he preferred "native" treatments over chemotherapy for his Hodgkin's lymphoma, but he also could not read. Period. When tested by his teacher for entrance into a charter school, according to court documents, Daniel, who had been home-schooled, could not identify the following word:


Let Spot amend that; he can’t read. As PZ put it so well, this kid suffers from the dual afflictions of Hodgkin's lymphoma and idiots for parents.

Regrettably, the former may be more curable than the latter.

Child protection services and the court agonized over whether to help this kid out, and in a fifty-eight page opinion the judge held that Daniel was indeed in need of protection. But here’s Daniel Hauser’s lawyer’s frame for it:

Daniel's court-appointed attorney, Philip Elbert, called the decision unfortunate.

"I feel it's a blow to families," he said. "It marginalizes the decisions that parents face every day in regard to their children's medical care. It really affirms the role that big government is better at making our decisions for us."

Right Phil. The court just trampled all over the Hausers’ right to watch their kid die for their mail order religion. And just exactly who are you representing, anyway? It sounds like Daniel needs a genuine guardian ad litem, not some collaborationist jerk who is willing to sell Daniel down the river. It may come as a surprise, Phil, but a lot of people think that “big government” is better at making this decision than the reality-challenged earth mother and her illiterate son who has, as the court found, only a marginal understanding of what is going on.

Spot just hopes that Daniel is found, gets the treatment he needs, spends some time in foster care, and learns to read, so that he can figure out what dipshits his parents really are.

DL autopsy edition: update

stylized 331 Club - DL Tomorrow night (Thursday, May 21st), Drinking Liberally will have a round table discussion of the just-ended legislative session. Our meeting starts at six, but the discussion will likely kick off around seven o’clock.

So far, Alliance for a Better Minnesota’s Internet Director Xavier Lopez-Ayala, Growth and Justice President Dane Smith, and Take Action Minnesota’s Policy Director Liz Doyle are scheduled to headline the discussion. There may be one our two more; we’re waiting for commitments.

There should be a little catharsis in the evening, but more than that, ideas about the future.

Remember, we meet at the 331 Club in northeast Minneapolis.

Hope to see you there.

Update: Some correspondents have inquired whether this session of DL is intended just as a forum critical of DFL legislative leadership. Absolutely not. There have been some harsh and unvarnished words in the blogosphere about that, but if that’s all you’re interested in, Spot asks that you stay home.

Tuesday, May 19, 2009

Ken Avidor wins a SPJ award

Ken won a 2009 Society of Professional Journalists Page One Award for his graphic novel “The 2008 Republican National Convention” published in Law and Politics. The concluding panel:

drill baby drill by avidor

Congratulations, Ken.

(Ken is also the creator of the banner for the Cucking Stool.)

Kidnapped by snake handlers

Thirteen year old Daniel Hauser was kidnapped today, snatched from a government child protection system that is trying to save his life: kidnapped by his mother. From a report on the WCCO website:

A judge issued an arrest warrant Tuesday for the mother of a 13-year-old boy resisting chemotherapy after she and the boy missed a court hearing on his welfare.

Brown County District Judge John Rodenberg also ordered that Daniel Hauser be placed in a foster home and be sent for an immediate examination by a pediatric oncologist so he can get treated for Hodgkins lymphoma.

"The court's priority at this point is to try to get Daniel Hauser and get him the care he needs," Rodenberg said.

The cancer is considered highly curable with chemotherapy and radiation, but Daniel quit chemo after a single treatment and with his parents opted instead for "alternative medicines," citing religious beliefs. That led authorities to seek custody. Rodenberg last week ruled that Daniel's parents, Colleen and Anthony Hauser, were medically neglecting their son.

The family, of Sleepy Eye, was due in court Tuesday to tell the judge results of a chest X-ray and arrangements for an oncologist. But Daniel's father was the only one who appeared. He told Rodenberg he last saw Colleen Hauser on Monday evening.

Should Anthony Hauser be water boarded to get him to tell where his son and wife are?


Update: This one has it all: ticking time bomb and extremist beliefs.

Monday, May 18, 2009


Here’s a little extra notice of Thursday’s Drinking Liberally in Minneapolis. We’ll perform a post mortem on the legislative session just ending. The guest list will be announced later; legislative types, DFLers, and members of the non-profit community have been invited.

Six to nine, Thursday night, 331 Club in northeast Minneapolis.

Sunday, May 17, 2009

Short video of Soapbox Night at DL

This was the evening of the day that Governor Pepsodent announced that he would fashion the budget of the state for himself.

Saturday, May 16, 2009

“No nuke Texas?”

No, grasshopper; the governor is saying “no new taxes.” But it’s a fib, of course. Well, more than a fib, really. This from Minnesota Public Radio today:

Cut in aid to outstate cities may result in higher property tax

Minnesota mayors will gather at the Capitol today to demonstrate their concern over potential cuts in state aid to cities and counties.

St. Paul, Minn. — When Gov. Tim Pawlenty announced he would use line-item vetoes and his emergency unallotment authority to balance the budget and end the session on time, he said Local Government Aid would be a target for spending cuts.

During an interview Friday night on Twin Cities Public Television, DFL House Speaker Margaret Anderson Kelliher said those cuts would result in skyrocketing local property taxes.

"They've gone up $3.6 billion over the last six years," Kelliher said. "Property taxes would actually surpass all other forms of taxes in terms of the amount collected. It would be $8 billion if the governor did that."

Kelliher says she's still open to trying to negotiate a budget agreement with the governor. The Legislature must adjourn by midnight Monday.

And consider these:

Blue Earth two cops short

Elko New Market drops it cops

Here’s what Mankato says the proposed 2009 LGA cuts equal:

The reduction is equivalent to the closure of the outdoor community pool and 7 patrol officers, which would be a 16% reduction in the total of sworn officers.

In fact, here’s a site that describes the impact on several cities, most of them outstate.

Boy, I’ll bet we’re really gonna take it in the shorts out here in Cakeville, Spotty!

Not really, grasshopper.

A thump of the tail to the Uptake.

Friday, May 15, 2009

Don’t get mad

Get even.

DFLers in the Legislature, there is no sense in getting mad at the governor. He’s beyond your reach. Don’t bother.

Impeach his ass.

That’s right; impeach him.

What is the standard for impeachment, Spotty?

Spot is glad you asked, grasshopper. It’s not the high crimes and misdemeanors standard in the federal constitution. No, no; it’s much different. Here’s the section of Article VIII of the Minnesota Constitution:

Sec. 2. OFFICERS SUBJECT TO IMPEACHMENT; GROUNDS; JUDGMENT. The governor, secretary of state, auditor, attorney general and the judges of the supreme court, court of appeals and district courts may be impeached for corrupt conduct in office or for crimes and misdemeanors; but judgment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit in this state. The party convicted shall also be subject to indictment, trial, judgment and punishment according to law. [Amended, November 2, 1982; November 3, 1998]

What is corrupt conduct, Spot?

Here’s Mirriam Webster on corruption:

An impairment of integrity, virue, or moral principle.

Is democracy a moral principle, Spotty?

Why yes, it is, grasshopper.

Who gets to decide whether the governor has violated a moral principle, Spot?

Well, it’s the House in adopting articles of impeachment, and it’s the Senate for deciding in a trial. By a majority vote in each body. And, boys and girls, the governor doesn’t get to veto articles of impeachment.

Golly, Spotty, that all sounds kind of political.

Exactly, grasshopper. You have to conclude that the drafters of the Minnesota Constitution had a different standard in mind, otherwise it would have been easy to copy the federal constitution. The drafters obviously intended something else.

It is well within the purview of the Legislature to conclude that that governor’s wholesale ignoring of the Legislature and listening instead to to unknown individuals whispering in his ear is corrupt. This isn’t just vetoing a bill: it’s the wholesale adopting of a budget for the state.

And the funny thing is, if the House adopt articles of impeachment, the governor cannot act until a trial of the articles of impeachment is concluded:

Article VII, Sec. 3 [Minnesota Constitution]. SUSPENSION. No officer shall exercise the duties of his office after he has been impeached and before his acquittal.

That would be something to see, Spotty!

Yes it would, grasshopper.

Thursday, May 14, 2009

It’s just a question of extra deaths

If the governor gets his way, there will be extra deaths in Minnesota because 113,000 people will lose access to MinnesotaCare. Spot has asked his legislators if the governor has said what the estimates of excess mortality are, but has gotten no response.

According to studies, this is what we’re looking at nationally on an annual basis:

Studies estimate that the number of excess deaths among uninsured adults age 25-64 is in the range of 18,000 a year. This mortality figure is more than the number of deaths from diabetes (17,500) within the same age group.

We may own a little bigger piece of that number very soon.

Tim Walz honors Bill Holm

Many of you know about the death of Bill Holm and the many remembrances of him that have taken place across the country, including one at the 331 Club shortly after his death. Here’s Tim Walz on the floor of the House a couple of days ago:

Tim Walz honors Bill Holm

A thump of the tail to Ollie Ox.

Technorati Tags: ,

Be prepared

Most guys will recognize that as the Boy Scout’s motto. When asked, “Prepared for what?” the founder of the Scouts said, “Why, any old thing.” Including, apparently, illegal aliens and despondent war veterans:


According to the linked article in the New York Times here’s a typical Boy Scount Explorer exercise in Imperial, California:

Ten minutes into arrant mayhem in this town near the Mexican border, and the gunman, a disgruntled Iraq war veteran, has already taken out two people, one slumped in his desk, the other covered in blood on the floor.

The responding officers — eight teenage boys and girls, the youngest 14 — face tripwire, a thin cloud of poisonous gas and loud shots — BAM! BAM! — fired from behind a flimsy wall. They move quickly, pellet guns drawn and masks affixed.

"United States Border Patrol! Put your hands up!" screams one in a voice cracking with adolescent determination as the suspect is subdued.

It is all quite a step up from the square knot.

If this doesn’t strike you as the Junior Minutemen – or worse, the outfit that Pope Benedict joined when he was young - you aren’t paying attention. According to the article, the Explorers train for terrorism and escalating border violence:

“This is about being a true-blooded American guy and girl,” said A. J. Lowenthal, a sheriff’s deputy here in Imperial County, whose life clock, he says, is set around the Explorers events he helps run. “It fits right in with the honor and bravery of the Boy Scouts.”

Among the things to be prepared for is how to quiet a lookout:

"Put him on his face and put a knee in his back," a Border Patrol agent [involved in the Explorer training] explained. "I guarantee that he'll shut up."

Here’s a tidbit from one Explorer exercise in Arizona:

In a competition in Arizona that he did not oversee, Deputy Lowenthal said, one role-player [sic] wore traditional Arab dress. "If we're looking at 9/11 and what a Middle Eastern terrorist would be like," he said, "then maybe your role-player would look like that. I don't know, would you call that politically incorrect?"

Well yes, not to mention stupid. Did he ride a camel in the Arizona desert, too?

Spot wonders whether the training includes herding lines of old ladies across the street in shackles. This ain’t your Daddy’s Boy Scouts, that’s for sure.

Wednesday, May 13, 2009

One of King Banaian’s little tin gods

Judge Richard Posner is, to mix a metaphor, way off the reservation:

By the end of the Clinton administration, I was content to celebrate the triumph of conservatism as I understood it, and had no desire for other than incremental changes in the economic and social structure of the United States. I saw no need for the estate tax to be abolished, marginal personal-income tax rates further reduced, the government shrunk, pragmatism in constitutional law jettisoned in favor of "originalism," the rights of gun owners enlarged, our military posture strengthened, the rise of homosexual rights resisted, or the role of religion in the public sphere expanded. All these became causes embraced by the new conservatism that crested with the reelection of Bush in 2004.

* * *

And then came the financial crash last September and the ensuing depression. These unanticipated and shocking events have exposed significant analytical weaknesses in core beliefs of conservative economists concerning the business cycle and the macroeconomy generally. Friedmanite monetarism and the efficient-market theory of finance have taken some sharp hits, and there is renewed respect for the macroeconomic thought of John Maynard Kenyes, a conservatives' bête noire.

Some of you, boys and girls, will recall King Banaian waving Richard Posner in front of Spot like a little silver cross when discussing the aftermath of the 35W bridge collapse.

Spot wonders if Banaian agrees that Milton Friedman is dead or he thinks Judge Posner has come down with a serious case of stupid.

Inquiring minds want to know.

Drinking Liberally: get it off your chest edition

soapbox Tomorrow night, Thursday, March 14th, there will be a soapbox — metaphorically, anyway — at Drinking Liberally. It’ll be your chance to tell the Legislature and the Governor what you think, or maybe what to do, as the session wraps up, at least the regular session.

There may be a video camera there, so practice up.

We’ll meet as usual, six to nine or so, at the 331 Club in northeast Minneapolis.

Graphic from Yankee Pot Roast.

Andersen Corp. Chief caps career with Spotty win!

the_spotty Jim Humphrey, the Chairman and CEO of Andersen Corp., a company that makes Windows that actually work (little inside computer joke; sorry), wins a Spotty (tm) for his op-ed Cutting MinnesotaCare: Quick fix with long-term consequences in the Star Tribune on Tuesday of this week. Here are just a couple of grafs:

If we've learned anything from the economic meltdown, it's that too much focus [by Wall Street] on short-term results can have catastrophic long-term consequences. Taking away health-care coverage for thousands of Minnesotans may provide a quick fix, but it will have far greater costs in the future. Cutting care would actually drive up the long-term cost of health care by forcing more people into emergency care, which is already overcrowded and very expensive. As an example, treating a bronchial infection in a doctor's office costs between $85 and $145; the cost for an emergency room visit is $450 to $650.

It would also drive up the costs of uncompensated care, which has risen 132 percent over the last five years. Minnesota hospitals already have unrecovered costs of more than $600 million a year for patients who can't pay -- and those costs are recouped through higher premiums to businesses and individuals who are insured.

Humphrey goes on to say that government should be run more like a business. To the extent that he is saying that government run more like one envisioned by the CEO Decider in Chief we used to have — and Spot is pretty sure he isn’t — Spot would disagree with this part of Humphrey’s analysis.

If, however, Humphrey means that we try to figure out what are goals are, and go about managing for those goals in an efficient and competent way, Spot’s aboard with the plan.

Mr. Humphrey says we should managing for health. The thirty-country OECD recently issued a report on how we’re all doing in the good ol’ US of A. Here are some of the findings:

Infant Deaths: 28 out of 30 (Mexico, Turkey).

Life Expectancy: 24 out of 30 (Mexico, Turkey, Hungary, Poland, Czech & Slovak Republics).

Health Expenditures: 1 out of 30.

Poverty Rates: 28 out of 30 (Mexico, Turkey).

Child Poverty: 27 out of 30 (Mexico, Turkey, Poland).

Income Inequality: 27 out of 30 (Mexico, Turkey, Portugal).

Obesity: 30 out of 30.

Incarceration: 30 out of 30.

Work Hours (ranked in ascending order): 30 out of 30.

Height (women): 25 out of 30 (Mexico, Turkey, Korea, Portugal, Japan).

Height (men): 24 out of 30 (Italy, Spain, Mexico, Portugal, Korea, Japan).

The countries in parentheses are the ones that the US bested in each category.

To summarize, we’re getting fatter, shorter, most of us poorer; more of our babies die; we don’t live as long as citizens of our peer countries even though we spend more per capita on health care than anybody else, but at least we work harder.

Well done America!

At least we’re taller than the Koreans, Spotty.

Very true, grasshopper.

If Governor Pepsodent gets his way, we’ll be pulling our weight (pun intended) here in Minnesota to make sure we can hold our heads high in comparing our statistics with any other state. You betcha!

(Remember, boys and girls, a Spotty (tm) is awarded to the author of an op-ed piece, a letter to the editor, or a blog post or comment that Spot wishes he had written himself.

A thump of the tail to A Tiny Revolution for the OCED report.

Friday, May 08, 2009

Abigail Stoddard win a Spotty (tm)!

the_spotty Pharmacy student Abigail Stoddard wins a Spotty (tm) for an op-ed in the Star Tribune which ran with the hed Pawlenty's cruelest cut: Health care. Here’s the lede from the piece:

Turn your head and cough it up.

That's the message to poor Minnesotans from Gov. Tim Pawlenty, who wants to solve a budget shortfall with the help of some of our neediest citizens.

With just weeks left in the legislative session, the governor and DFL leaders are deadlocked over spending cuts and revenue-raising sources that would balance the budget. A health care cut for the poor would be the unkindest cut of all.

As many as 84,000 previously covered Minnesotans will become ineligible for MinnesotaCare, a critical state-funded health insurance program, under Pawlenty's plan.

The 84,000 is the sum of two major cuts. The first would eliminate eligibility for adults without children by 2010 -- 55,000 Minnesotans. The second would eliminate eligibility for adults with children by 2011 -- 29,000 Minnesotans.

The whole thing is a good read, and it includes a description of some of the people who rely on MinnesotaCare.

Remember, boys and girls, a Spotty (tm) is awarded to the author of an op-ed, letter to the editor, or blog post or comment that Spot wishes he had written himself. In fact, Abigail’s article inspired Spot to do a little more reading, and here’s some of what he found.

Update: The Minnesota Health Care Access Fund is about the only thing in state government that is in the black. That’s why, of course, there is money to raid!

The Minnesota Universal Health Care Coalition’s estimate of the devastation (contained in an email message to supporters) from Pawlenty’s budget is even greater than Abigail’s figures:

The governor’s budget has devastating cuts to health and human services which would, among other things, kick over 113,000 people off Minnesota Care. While the mission of our organization is to enact the Minnesota Health Plan—a sustainable, cost-effective and equitable solution to the health care crisis—we can’t stand by while thousands lose their current coverage.

The cuts to MinnesotaCare would be necessary under Pawlenty’s plan because he wants to divert substantial funds from the Minnesota Health Care Access Fund to help plug the budget hole. There is already a grand tradition of doing this:

Nearly every year he's been in the governor's office, Pawlenty has sought to raid the surpluses in the Health Care Access Fund to pay for general fund programs, successfully diverting more than $400 million in HCAF that way during his first term, and borrowing $50 million more for health care reform during the last session. But the fund was created in 1992 specifically to underwrite MinnesotaCare, a program designed mainly to insure working families whose employers don't provide coverage. The source of this dedicated funding is a 1 or 2 percent tax on health providers and health plans, and a sliding scale premium on MnCare enrollees.

The governor is looking for a cool quarter of a billion from the fund this biennium. But not only that (from the same PIM link):

In light of this session's historic budget deficit, Pawlenty saw an opportunity to eliminate the freestanding HCAF altogether by folding its revenues into the general fund. That's a pretty slick trick: Not only does the governor want to cut state payments to health providers by 3 percent, he wants to take the 2 percent tax they are paying to make sure middle class workers have insurance and use it to fulfill the state's legal obligation to insure the poor and disabled through Medicaid.

Finally, here’s a picture of the governor receiving a citation for his budget chicanery:


Come on, Spot, you know that’s the governor posing with his Day of Prayer proclamation after meeting held with a group of evangelical preachers.

So it is, grasshopper. Blessed are the charlatans, Spot says.

Thursday, May 07, 2009

DL 2 Nite!

The weekly meeting of Drinking Liberally – Minneapolis is tonight, six to nine or so, at the 331 Club in northeast Minneapolis. We don’t have a guest scheduled, but there will be a Marty Seifert impression contest with a free beer to the winner. Here’s a video to get you inspired:

Tuesday, May 05, 2009

Wikrent wows ‘em at DL!

Here’s a highlight reel of Tony Wikrent’s appearance at Drinking Liberally in Minneapolis a week ago.

Tony operates an internet book store and he blogs as NBBooks at Daily Kos.

Sunday, May 03, 2009

Keep your chin up, Andy!

Sad news, boys and girls. Andy Aplikowski lost his bid –- for re-election, apparently -- for the CD6 Vice Chair at the Republican convention yesterday. Andy’s taking it hard, too:

I'm realizing I am completely irrelevant now and that the last 4+ years have been a complete waste of my time. The blog, the time at GOP meetings, the lawnsigns, the calling, the everything. All a waste. I've killed myself the last 4 years and now I am worthless trash that was tossed out the window that no one will notice it is gone.

It’s times like this, Andy, that you must look to the leaders of your party for guidance in projecting grace in defeat.

Like Sarah:

amd_palin-frown Or maybe Norm:

01colemanOr even W:

frowning w 

Cheer up! You still have your dogs and your truck! Right? It’s not as if being first mate on the good ship Oblivion sailing into the sunset was such a great gig, anyway.

Seriously, Andy, tomorrow will be a new day; it could be worse than this one, but chances are it won’t be.