DemConWatch

Next Year's Big Political Supreme Court Case

tmess2 — Fri, 03 May 2013 02:12:24 GMT

In adopting the Constitution, the Framers established a rough structure of government, leaving it to Congress to fill in the details. For example, while establishing that there would be a Supreme Court and lower courts, the Framers did not establish the number of judges on the Supreme Court or any significant details about the structure of the lower courts. Likewise, while recognizing that the Executive Branch would probably be divided into different departments handling the different duties of the Executive Branh, the Constitution did not establish the exact departments and left Congress free to create new departments.

One of the things that the Framers did provide for in the Constitution was that the executive departments would answer to the president. To assure this, they gave the President the power to appoint executive branch officials. However, recognizing the power of the heads of the departments (and some other appointees including judges), the Framers also required that major appointees be confirmed by the Senate (and gave Congress the power to define what appointees needed Senate confirmation). One of the things that the Framers recognized was (especially given travel time in the late Eighteenth Century) that there would be times when Congress was not in session so that the members of Congress could return home and take care of personal business. Not wanting to hamstring the government during Congressional recesses, the Framers authorized the President to temporarily fill vacancies during such recesses -- Article II, Section 2, clause 3.

In recent years, to avoid recess appointments and pocket vetoes (another power that comes into being during Congressional recesses, Congress has begun to hold nominal meetings when the House and Senate are technically in session once or twice a week even though neither house has a quorum present. At the same time, the Senate has been unable or unwilling to confirm Presidential appointments to administrative agencies, in some cases leaving those agencies without a quorum to do business. To break the disfunction of the Senate, the past several Presidents have contended that these nominal sessions are insufficient to avoid triggering the recess clause.

During one of these recesses, President Obama appointed several members to the National Labor Relations Board. Without these appointees, the NLRB would lack a quorum and would be unable to make decisions on employer-employee labor disputes referred to it under various statutes. Noel Canning Corporation lost one of the cases decided by the NLRB after these recess appointments and filed suit claiming that the recess appointments were invalid and, therefore, there was no quorum for the NLRB to make any decision in its case. In January, the Circuit Court of the District of Columbia issued an opinion finding in favor of Noel Canning. The Circuit Court rejected the claim that these were valid recesses on multiple grounds: 1) that the recess power only comes into effect during "intersession" recesses (the recess at the end of the annual session), not during intrasession recesses in the middle of a session; 2) that to properly trigger the recess power, the position must become vacant during the recess (i.e. the failure of the Senate to confirm anybody to fill an existing vacancy during a session would not authorize a recess appointment at the end of the session).

Last week, the Administration asked the Supreme Court to review this decision. In its application, the Administration asks the Court to review both theories adopted by the DC Circuit.

But for the recess appointment, a party that wishes to, but is unable to, pass changes reducing the powers of an executive agency can fulfill its goals by just refusing to confirm nominees for that agency -- whether that be the FCC, FEC, NLRB, SEC, or any of a large group of agencies that operate through a Board rather than a unitary head -- until the Board governing that agency lacks a quorum due to the expiration of the terms of its members. Even if the court takes this case, there will still be the live question of whether technical meetings are enough that Congress is still in session. Right now, it is 50-50 whether the Supreme Court will make a decision on taking this case before its summer recess. My hunch is that Noel Canning will request more time for its response, pushing a decision on taking the case until October. While the Supreme Court is likely to take this case, an October decision on taking the case would push oral argument into January or February of 2014 and a final decision into June 2014.

Milwaukee and Minneapolis May Both Want 2016 Democratic National Convention #DNC16

Oreo — Thu, 25 Apr 2013 14:48:06 GMT

A trusted source has passed along that Minneapolis will bid to be host city for the 2016 Democratic National Convention.

Also... Milwaukee, WI is in the process of gauging support for a bid.

Other possible convention cities mentioned so far are Columbus, Nashville, Salt Lake, Newark, Indianapolis, Dallas, Phoenix and Cleveland.

This Weeks Proves, Again, How Much We Need Government

DocJess — Fri, 19 Apr 2013 19:00:47 GMT

As I write this, Boston, and its suburbs, is locked down as law enforcement seeks the second bomber. Meanwhile, from Texas, Rick Perry (who has in the past pushed for the secession of Texas from the US, and likely opposed the help the Feds approved after Sandy) is begging for Federal aid for West, Texas, which actually does need it.

But back to Boston. Who is out looking for the bomber? Government workers. Tirelessly, bravely, not thinking about the potential personal harm: these folks rush in because it's what they do. The hospitals that treated the injured after the Boston Marathon bombing? Federal funds recipients for Medicaid and Medicare patients, as well as payment for people who need help and have no insurance. The last thing on anyone's mind as the patients flowed in Monday was who was going to pay. A lot of the doctors and nurses wouldn't hold their degrees today if not for student loans, backed by the Feds, sometimes direct from the Feds. Even in my generation, when education was much cheaper and it was possible to put oneself through college, it was impossible to get through med school without loans. Research? Clinical trials? Lots of things that make hospitals do what they do? Again, government funding.

This is not to say that there are non-government employees who provided photos and videos, and rushed in to help at the initial blast...but it's the FBI doing facial recognition on all those hundreds of thousands of photos and tapes. It's the FBI that announced yesterday they'd be providing victim assistance.

This morning I was at the car dealer to get something recalled fixed on my car (no, I'm not clear what) and the TV was on, and everyone was discussing the bombing and making fun of the idiot on the street reporting for CNN. I got into a conversation with a guy who explained to me why government was bad, why we shouldn't have to pay such high taxes...if you know me, you know the conversation...but today it was peppered with me pointing to the TV screen -- at the cops and other government officials...what would happen if they weren't there? Didn't he think they deserved decent salaries and benefits? He was so beholden to his teabag beliefs that I actually might have given up, but it turns out that I was amoungst people who shared the view that government matters. To all of us.

It may take a Sandy storm, or a Boston bombing, or a Texas explosion to get us to focus...but every year is an election year. Often odd-numbered years are when we vote for the local people who fund (or don't fund) the policemen, firemen, teachers, public works workers....they're out there doing good 24/7/365. Remember that this November.

Background check bill could pass if Dean Heller could read

DocJess — Wed, 17 Apr 2013 10:27:05 GMT

Today the Senate will vote on background checks. And it looks like the measure will fail. Full details here, including the whip counts.

I understand that we have become a country where lots of people don't read books. Yes, really, half of all Americans read fewer than 6 books last year. From Pew:

All told, those book readers consumed a mean (average) of 15 books in the previous 12 months and a median (midpoint) of 6 books — in other words, half had read fewer than six and half had read more than six. That breaks down as follows:

7% of Americans ages 16 and older read one book in the previous 12 months
14% had read 2-3 books in that time block
12% had read 4-5 books in that time block
15% had read 6-10 books in that time block
13% had read 11-20 books in that time block
14% had read 21 or more books in that time block

That same Pew study looks at e-book readers. Another set of studies indicate that people don't accomplish long term retention from e-readers the way they do from paper books. Fascinating.

I believe reading matters. Dean Heller (R-NV) for example, is voting against background checks because he fears the bill will result in a national gun register, even though the bill clearly states that such a registry won't happen. The background check bill could pass if Dean Heller could read. His one vote is the difference between passage and failure.

I bring up reading with respect to the amount of violence in this country because I think there's a parallel between being violent and not reading. It's not just that elected reps don't read the legislation they're voting on, it's also that reading makes one smarter, more contemplative, less violent. Seriously - when is the last time you heard that a legitimate intellectual shot someone? Or blew up part of Boston?

If people read more books, they might read about history. Think Santayana.

There is something about holding a book in your hands, under a tree, engrossed in a story, or fascinated by science, or being so enraptured by something historical that it actually feels as if you are there.

But people don't read. And when they don't read, there are a lot of other things that go with that state of being. They often don't think things through. They don't understand how to critically evaluate data, therefore lacking the ability to separate propaganda and pablum from truth and reality.

And so we end up where we are today: possibly the most violent lawful society ever known. Crazy people shooting other people every day. And IED killing innocent folks a block from the oldest library in America. Could the solution be as simple as teaching people to read, and then finding a way to get them to read?

2014-The House

tmess2 — Sun, 14 Apr 2013 19:09:29 GMT

Last Week the Cook Report issued the updated Partisan Vote Index that adjusts for the results of the 2012 election (the Cook Report releases the PVI in three tables -- by district, by member, and by partisan rank). I'll skip over most of the details in the story about the change over time in the number of swing districts to focus on what this release means for 2014.

First, the explanation of the data and the cautions on its use, the Partisan Vote Index is a measure of how far the presidential votes in a given district differ from the national average over the past two cycles. (With redistricting, the assignment of the 2008 vote to new districts is, in some cases, a rough estimate). In other words, it is, in part, a measurement of how well the people running redistricting have gerrymandered the districts, but it is also, in part, a measure of how well a party has do nationally to win an election.

Second, because it is based on divergence from the national average in the last two elections -- an "even" district is one that Obama averaged a fraction under 53% in 2008 and 2012. Thus, to win an even district, the Democrats would need to get around 53% nationally.

Third, individual Congressional races (and thus the national vote total) differ from the Presidential race in multiple ways. For Presidential races, the two parties, in theory, are each running a strong candidate. For Congressional races, especially lopsided races, a party may not be able to get any candidate much less a strong candidate. Representatives may serve the same area for twenty-thirty years becoming well-known to their constitutents and picking up voters who otherwise would never vote for a candidate from the representatives party. In some states (Louisiana, California, and Washington), candidates run in a jungle primary in which candidates from bothe parties compete against each other and the top two regardless of party advance to the general.

Fourth, while election forecasters love to talk about a uniform national swing, there is no such thing. Even with a nation race (like for the President), you can see when you compare the 2008 numbers to the 2012 numbers (a very, very tiny overall swing to the Republicans), there were districts that swung noticeably towards Romney and districts that swung noticeably toward Obama throughout the chart. When you add in the strength of weaknesses of individual candidates in congressional races, there will be Democrats winning districts that they shoujld not win,a nd losing some districts that they should win.

Having given the appropriate cautions on the limits of these numbers, what do they show. First, even with his sizable national win, President Obama only carried 209 seats in 2012. President Obama probably needed about 0.75% more to get to a majority of Congressional Districts (one reason why Republicans keep flirting with adopting the Maine-Nebraska system). Currently, the median district in the county is the Third District of Washington, showing an Index of R+2. In theory, to win this election, the Democrats need to get a national vote total of around 52.25% (compared to the approximately 50.5% in 2012). However, while theoretically, the Republicans should have only gotten 51.5% of the vote in this district in 2012 based on the national numbers, they actually got 61%. To get enough of a swing to actually get to 218, the Democrats probably need something like 54% to account for districts in which Republicans overperform and Democrats under perform (which would only put another 10-15 seats into play).

Even beyond the swing needed for this median district, the other numbers from the PVI tell a very ugly story.

Currently, Jim Matheson of Utah's Fourth District hold the most Republican seat in the Democratic caucus. Even putting aside the distorting features of having a native son on the ballot in 2012, McCain got 56% of he vote in this district in 2008. There are a total of seven Democrats from districts that both McCain and Romney carried and two from districts that Romney won. By definition, these nine are permanent targets.

On the other side fo the aisle, Gary Miller of the California's 31st District holds the most Democratic seat in the Republican caucus. Obama got 57% of the vote both times in this District. Mr. Miller, however, is somehting of an accidental by-product of the jungle primary system. So many Democrats ran in the primary that the top two finishers were both Republicans. The next closest Republcans come form D+2 districts. Overall, there are fifteen Republicans from districts that Obama won both time and two more from districts that Obama won in 2012). Even if the Democrats win all seventeen districts and hold there nine Romney seats, they just barely get to 218.

The margins in the PVI are equally ugly. If a margin between even and +2 is a pure swing seat, a margin between +2 and +5 is a lean seat, and a margin over +5 is a likely seat, the margins in the distrcts give the Republicans 222 lean and likely seats to 174 lean and likely seats for Democrats. More importantly, the Republicans only hold one of the 174 lean Democrat seats (California's 31st), but (corresponding with the number of Romney districts held by Democrats), Democrats have 9 of the lean seats.

There are only 35 pure swing seats after the 2012 election. Currently the Republicans hold a 20-15 advantage. Given the difficulty of winning additionaly lean Republican seats, the Democrats need to win at least 17 of the 20 Republican swing seats and probably all 20 to offset any possible losses of the five likely Republican seats currently held by Democrats. The bottom line of these numbers is that there is only one "easy" target seat for Democrats in 2014. Winning the majority back is going to take effort and hoping for targets of opportunities where Repulicans nominate candidates who are grossly out of touch with their districts (e.g. Michelle Bachmann who came within a hair of losing a seat with a PVI of R+10 in which Romney geto 56% of the vote).

The PA 2014 Governor's Race: First Preview

DocJess — Tue, 09 Apr 2013 10:38:55 GMT

Yesterday Nate Silver handicapped next year's gubernatorial contests, and Tom Corbett came in as fifth most vulnerable. All well and good, but my current interest is the Pennsylvania race, mostly because I live here, and enough is enough. I'm not the only person who feels that way: I can't find anyone who thinks Corbett is doing anything other than a horrible job.

When you look at gubernatorial races, "most people" don't have an opinion. They might know who the governor is, and where he/she lives (that capital thing again, sorry) - but it's not generally a race that people know much about until a month or two out. Not here. Not this time.

Everyone knows about Jerry Sandusky. People living under rocks know about Jerry Sandusky. And the overwhelming majority of them know that Tom Corbett was the AG when charges were raised, that he didn't prosecute for 3 years, and that he got $640,000 from Jerry's charity for his first gubernatorial run. Some of those people living under rocks are living under rocks and not indoors because of the massive cuts that Tom Corbett personally fought for: to rescind monetary aid to the poor and disabled, to decrease education funds; to deny a Pennsylvania health insurance exchange; to illegally sell off the PA lottery to a British company; and to privatize liquor sales, throwing thousands out of work and handing the liquor licenses to Wal-Mart. And who can forget his line to pregnant women about to get a vaginal probe they don't need? "Just close your eyes."

Yes, we know him. Nate Silver might say that due to polling data and whatever else he puts in his secret sauce, there are 4 more vulnerable governors for 2014. But the animose to Tom is personal.

So who's running? The list is pulled from Wikipedia, and is in alphabetical order. I've added my comments.

Declared Democrats:

John Hanger, former Secretary of the Pennsylvania Department of Environmental Protection. John invited Max to a debate and has already sent out oppo research on Max. Really.
Max Myers, businessman and former pastor. This is from John's research on Max. If true, Max is no Democrat.
Allyson Schwartz, U.S. Representative. Yes, she's in. She's INCREDIBLY popular with progressive Democrats in SE PA. She could win the primary, but there is virtually no chance she can win the general, and I hope she drops out before she loses her Congressional seat.
Tom Wolf, businessman and former Secretary of the Pennsylvania Department of Revenue. I see his name and think "Albert Greene" -- Tom Wolfe was a great author.

Probable Democrats:

H. Scott Conklin, State Representative and nominee for Lieutenant Governor of Pennsylvania in 2010. Won't run.
Daylin Leach, State Senator. I adore Daylin. He's charming, funny (hysterically funny), his politics are terrific and sadly this is not his year.
Robert McCord, state Treasurer. If Rob runs, he is the top of the top tier. Well funded, well backed, a great organization, and would have the support of a lot of the business community.
Kathleen McGinty, former Secretary of the Pennsylvania Department of Environmental Protection, former Chair of the Council on Environmental Quality. Katie is a go-getter, and while you've never heard her name, she's aligned with Al Gore and Bill Clinton. She's got an exploratory committee, and if she runs, she'll bring a lot of heavy hitters to the state, probably a lot of the people Terry McAuliffe is using this year, and there will be a huge discussion of fracking and why we don't charge companies to frack as they do everywhere else, even in Texas. A top tier candidate.
Michael Nutter, Mayor of Philadelphia. Love Mike. He can't win.
Dan Onorato, former Allegheny County Chief Executive and nominee for Governor in 2010. He lost in 2010 not only because it was a Republican sweep year, but because he's a western PA Dem - meaning he's a blue dog. His positions on abortion, gay rights and women will hurt him if he tries to run again.
Ed Pawlowski, Mayor of Allentown -he's going to run, but he lacks backing and name recognition outside of Northeast PA.
Joe Sestak, former U.S. Representative and nominee for the U.S. Senate in 2010. We all love Joe. Many of us had hoped that he'd run for his old seat last year. He hemmed and hawed and kept saying "maybe" for so long that he basically handed PA CD 7 to Pat Meehan. If he's going to run, he needs to announce this spring.
Josh Shapiro, Chairman of the Montgomery County Board of Commissioners. Might run, but I really hope that he doesn't. Josh is a great guy who's been the head of the Montco Board for a little over a year: first Democratic running of that county in 140 years. He's doing a great job, and should serve out his term there. He's young and has a future, and shouldn't waste political capital here.
Tim Solobay, State Senator - won't run.
Michael J. Stack III, State Senator - won't run.
Jack Wagner, former Pennsylvania Auditor General - might run, but has a lot less name recognition than some other Democrats, and a weak base.

Possible Republicans:

Bruce Castor, Montgomery County Commissioner. If Tom doesn't run, Bruce will be the candidate. There's a good chance that Bruce can beat Tom in a Republican primary.
Tom Corbett, incumbent Governor - yes it's true -- he hasn't announced!
Jake Corman, State Senator - won't run.
Dominic Pileggi, Majority Leader of the Pennsylvania State Senate - might run, but won't run for long once people remember the legal problems.
Mike Turzai, Majority Leader of the Pennsylvania House of Representatives - might run, but won't run for long once people remember the legal problems.
Scott Wagner, businessman - No relation to Jack Wagner - won't run, and if he does, it won't last.

Let's sum up. Allyson Schwartz announced yesterday, and she is "the name" in the race so far. She's the only one of the declared candidates with any name recognition. John and Max are going to fight it out in their own little universe and will burn one another out. Tom may peak, but he doesn't have staying power. Allyson has a lot going against her. She is über liberal, which is great in her Congressional district, but is not going to play statewide. She's a Jewish woman, which is also not going to play. She was a supporter of Hillary Clinton in 2008, but it's unlikely she'll be able to make enough use of the remaining Clintonistas in the state: it's more likely they'll migrate to McGinty.

Rob McCord is the man to beat on the Democratic side, IF he runs. The smart money says that he'll only run if he calculates that he has a high win percentage. I don't expect we'll hear from him on that issue for a few months.

And then there's Katie McGinty. I am surprisingly impressed with her on a number of levels. She's smart, and both her bio and her work are compelling. But it's more than that. There's a political trait that's rare, and something one is either born with or not, and she's got it. It's the ability to meet a person and remember them. She came to speak to our local Democratic group last week, and when she walked in, I went to greet her, and she looked at me and said "I know you..." she paused and said "I saw you registering voters at the mall." Seriously - that would have been last year, or possibly in years past. Trust me, I'm not that memorable. But she has the eye. When she spoke, she talked about her work at the state and Federal levels. She has moxie and confidence, and seriously good politics. Evaluating her public presence vs Allyson's presence the last time I spoke with her at a public event, it strikes me that there's no contest.

A few notes on Bruce Castor. He was a decent District Attorney, and the office ran well under him. As I said, if Tom declines to run, Castor will easily claim the Republican nomination. He's a street fighter, and if Tom runs, it's important to remember that there's bad personal blood between the two men going back to the 2004 AG race, which was the first time the two competed head-to-head.

So that's the initial frame, folks. It could be a bloodbath, but it will be fascinating to watch.

Whither the Workforce?

DocJess — Mon, 08 Apr 2013 10:10:50 GMT

The workforce participation rate has fallen to 63.3%. It hasn't been this low since the late 1970's. Let's look at some numbers. Below is a chart of the labor participation rate from 2003 to the present. (All data from BLS.)

These are the associated numbers, by month, for the same time period.

Here's the really scary part, which comprises the labor participation rate since 1948, when the BLS started keeping statistics.

The rise over time is understandable. The 60's, 70's and 80's saw a lot of women entering the workforce who would not have worked in prior times. In the 60's and 70's, this was primarily women who wanted to work, especially at vocations that weren't traditionally "pink collar". By the 80's, as wages stagnated and manufacturing moved overseas, there became a need for two incomes to support a family. And then came the drop.

It's not just the 2007-09 crash, it's something more insidious. The labor participation rate peaked for the first four months of 2000 at 67.3%, and has been falling ever since. There are several explanations for some of the decrease, but not enough to explain all of it.

Part of it is in how ALL employment numbers are calculated. There are all sorts of numbers generated from different sets of statistics and there is "noise" associated with the numbers. Therefore, all sorts of things can be off. For example, if someone is making $30,000 doing ebay and Etsy, while sales taxes are paid, there are no payroll taxes, and that person wouldn't count as a member of the labour force. Alternately if there's a construction worker who can't find regular work, but is doing odd jobs for cash, he's not part of the labour force. Small start-ups, like cookie delivery with the proprietor being the sole employee, are not part of the count. And it's likely that this is part of it.

Further, there are a large number of people who are on disability, or working towards getting on disability, who are not counted as part of the BLS data. If one is in the process of applying (which can take YEARS) that person cannot take a job, or it affects processing of the claim.

There are also veterans who in prior times would have collected a military pension after 20+ years in the service and would have undertaken a second career, but now is just living off the pension, and likely income from a spouse.

It's likely that if the unemployment rate fell to 4%, which is considered full employment, some, although not all, of these folks would go back to work. Just for comparison, here's a BLS chart of unemployment from 1948 to the present.

Yes, I know your question. The reason that that unemployment spikes didn't cause great decreases in the labor participation rate is that those recessions were relatively short lived AND government benefits such as unemployment was more robust AND people used to save more money, and thus had a cushion. Further. families were stronger: there are many more single person household today than ever before. In addition, the home ownership rate was lower: people can move for a job more easily if they don't need to sell a house.

The decrease of people in the labour force greatly affects the overall economy, in the same way as higher unemployment does. That is, we're a consumer-driven economy: fewer people with disposable income decreases that amounts of goods and services bought and consumed, thus lowering the overall GDP/GNP.

So what are potential solutions? There are a few that relate to creating more jobs, but so long as there are Republicans in control of the House, I wouldn't count on any of them, despite the viability of such programs. One solution, as incongruous as it sounds, is to change the way mortgage interest interacts with taxes. This link is to a long and fascinating article on the mortgage income deduction. It shows how people making less than $100,000/year derive little benefit, if any, from mortgage interest deductions, while those making above $100,000 take almost 50% of the benefit. (Remember, MANY fewer people make over $100,000 than below that threshold, so the impact is huge.) One of the side points is that having mortgage interest deductions set the way they are affects business investment, leading to decreased wages and fewer people employed. Further, it encourages debt, thus leaving people less able to handle unemployment and more likely to leave the labour force.

Ideally, the solutions are more government spending directly on jobs programs (think FDR's alphabet soup programs) but as I said, not happening so long as there are Republicans.

My final thought is if close to 40% of the American population between 16 and 65 is not in the labour force, and that number keeps rising, how does such a large population LIVE? The number of homeless people doesn't reflect that huge an increase, so these people must be living somewhere. 30% of America isn't on SNAP, so these people must be getting food somehow. It's a puzzlement. And a real problem when that number passes the 40% threshold, which isn't that far in the future if one extrapolates the data.

Sunday with the Senators: Will Lautenberg Return?

DocJess — Sun, 07 Apr 2013 15:47:51 GMT

Senator Frank Lautenberg issued the following statement:

"I regret that I will not be returning to Washington next week as I continue treatment for, and recuperate from, muscle weakness and fatigue. My physician continues to advise me to work from home and not travel at this time."

Lautenberg is 89, had the flu in December, and was diagnosed in 2010 with b-cell lymphoma, which is ostensibly in remission. There is no information on when or if he will return. It's unclear whether or not he is physically able to come to DC just for a vote. If he could travel, he would not be the first Senator rolled into the chamber on a stretcher for an important vote.

The Senator has had a long and illustrious career, and will not be seeking re-election in 2014. The likely replacement will be Cory Booker, superhero, and current Newark mayor.

There's no doubt the the Senator's health is precarious. Then again, he can retain his seat and not show up at all. Ever. There are senators who have taken long absences for illness, most recently Mark Kirk after his stroke.

But perhaps he will resign. If he gives up his seat before the end of August, 2013, then a special election would be held concurrently with the November election. From August to November, Chris Christie's handpicked interim appointment would hold the seat. However, if he resigns after that, Christie's seat holder would be in place until after the November, 2014 election.

From a strictly political perspective, the best course of action would be for him to resign on the last possible day in August, having previously primed Cory Booker to be in place to run. No doubt Booker is already developing his team for next year. The chances of Cory being able to win this November, no matter who Christie appoints is very high, especially if Lautenberg endorses.

The fear is that his health does not improve, and he resigns (or, sadly, dies) after the 2013 deadline. That would make Booker's election more difficult in 2014.

Frank Lautenberg is an honourable man. He's the last WW2 vet serving in the Senate, and its oldest member. His legislative history is one about which he can be very proud. It's time for him to take care of himself, spend as much time as possible with his wife, children, grandchildren, relatives and friends.

Supreme Court -- Outstanding Cases

tmess2 — Sat, 06 Apr 2013 01:10:05 GMT

The Supreme Court -- like Congress, schools, and many state legislatures -- has a cyclical pattern to how it conducts busines which repeats from year to year. From October through the end of April, that annual cycle are composed of seven four-week cycles (with a one or two-week winter break between the December and January cycles. Each week contains two consecutive weeks in which the Court hears arguments on Monday, Tuesday, and Wednesday (skipping an argument session if a federal holiday falls on that day) and two weeks in which no argumetns are heard.

During this period, opinions on outstanding cases can be released on any of the argument days or on the Monday of the first "off" week. April is the last argument session and once that cycle concludes, the Court starts releasing opinions each Monday (and sometimes on an additional day or two during the week).

By this point of the year (the conclusion of the first off week of the March argument session), opinions have typically been issued for the majority of the non-controversial cases from the fall and occasionally a couple from the January and February sessions. That makes it a good time to see what cases are outstanding (particular in a year like this one in which the April session involves less politically-charged issues that primarily concern individuals with an interest in a certain category of cases (e.g. patent law or criminal law).

There are still three cases hanging over from October. Two of these case are major. The first is a reargument from last year involving whether corporations with a significant presence in the US (here Royal Dutch) can be sued in US court for human rights abuses in foreign countries. The second is the University of Texas affirmative action case. In an interesting twist on the Texas case, the Court just took a case from Michigan on whether a state can ban affirmative action in college admissions by constitutional amendment. Reading tea leaves from the Supreme Court is always risky, but if the Court was going to ban affirmative action in the Texas case, the Michigan case would be moot, suggesting that the current draft in the Texas case would allow some types of affirmative action.

The Court has issued opinions in all of its November cases, but still has three pending cases from December. The most significant of these cases involves what types of authority make an employee into a supervisor for the purposes of making an employer (in this case Ball State University) liable in employment discrimination cases for the acts of that employee. Oral argument, however, revealed some unique factual issues that may result in this case not clearly resolving that issue.

Given the shorter time since oral argument, the pattern switches for the January, February, and March sessions with most cases still outstanding. Only five opinions (out of thirteen cases) have been issued from the January cases. Similarly, only one option (out of ten cases) has been issued from the February cases, and no decisions (out of ten cases) have been issued from the March cases.

There are a couple of interesting criminal cases from these months including whether a warrant is required to take a blood sample in a DWI case and whether DNA samples (typically done by a swab of the gums) can be taken upon arrest (similar to fingerprints) for use in a DNA database.

Other than the carry-over from the fall, the big politically-charged cases come from February and March -- five big cases in total. First, from Virginia, whether a state can exclude residents of other states from accessing records that are open to residents of that state. Second, from Alabama, whether Section 5 of the Voting Rights Act (covering states with a continuing record of discrimination and requiring those states to pre-clear changes to voting procedures) is still constitutional. Third, from Arizona, whether a state can add additional requirements without federal approval to the federal voter registration form (particularly requiring proof of citizenship). Fourth, from California, whether prohibitting same-sex marriage is unconstitutional. Finally, from New York, whether the federal government can constitutionally refuse to recognize the validity of s same-sex marriage authorized by the law of the jursidiction where the marriage occurred.

It is theoretically possible that we will get a decision from the two outsanding October cases during the April session. The five big cases from February and March are unlikely to be decided before June (and maybe not until the last two weeks in June) unless the Supreme Court decides to punt some of these cases on jurisdictional grounds -- most likely in the two same-sex marriage cases.

Besides keeping an eye out for these major decisions, the next three months may also feature the favorite Beltway game of guessing whether any Justices will retire. For those prone to speculation, some think that it is hard for a president to push through nominations after the first year of the second term -- at least not controverisal picks. While things have changed over the past three decades, Justice Scalia was appointed in the summer of the second year of Ronald Reagan's second term. Justice Kennedy was appointed the following year (tecnically not being confirmed until the last year of Reagan's second term), and Justice Alito (although nominated in the fall of the first year of Bush's second term) was not confirmed until the second year of Bush's second term. If there is a vacancy, most expect that it would probable be Justice Ginsburg (80) or Justice Bryer (75) rather than one of the older Republican-appointees. However, Justice Ginsburg has stated that she does not plan to retire. Both Justice Kennedy and Justice Scalia turn 77 this year, and barring some major health crisis are likely to hold on through the 2016 election. Whether these two will try to hold on until 2020 if a Democrat wins in 2016 is the more interesting issue. Given what happened in 1992 after Justice Brennan and Justice Marshall gave up hope of a Democrat winning the White House, it is likely that Justice Scalia will try to make it to 2020 if necessary. Justice Kennedy is more likely to retire ini 2017 or 2018 regardless of who wins.

Kansas City moving forward with 2016 GOP convention bid

Matt — Fri, 05 Apr 2013 03:05:08 GMT

We noted last month that a Kansas City group was organizing a bid to host the 2016 Republican National Convention. Here's the latest:

Kansas City convention planners will meet informally in the next month with members of the Republican National Committee to discuss an official bid to host the party’s next national gathering. They have already set up a potential host corporation and recently registered the name “RNC Kansas City 2016” with the state of Missouri.

Organizers released a logo for their effort and — this being the 21st century — they have set up a Facebook page. Sen. Roy Blunt, a Missouri Republican, said he has discussed the issue with Kansas Gov. Sam Brownback and national party officials.
...
Landing a national political convention is extraordinarily difficult — time-consuming, expensive, opaque, political. Kansas City could meet every technical standard set by the GOP and still fall short because of a party preference for a more presidentially competitive state, threats from a big donor who prefers the barbecue somewhere else or a better financial offer from another location.
...
A spokeswoman for the party was tight-lipped about a decision timetable, but Kansas City officials think the site selection committee will be picked by the end of spring and the actual choice of a convention site could be made this year.

Kansas City enters the convention competition with some advantages.

The Sprint Center appears large enough. It’s roughly the size of the Tampa Bay Times Forum, where the 2012 Republican convention was held, and is well located downtown.

The arena’s close physical connection with both the Power & Light District and Bartle Hall would probably provide ample room for more than 2,200 convention delegates, as well as visitors, support staff and 15,000 reporters, photographers and technicians who would attended the GOP gathering.
...
Kansas City’s hotel rooms are scattered and inconvenient. Hughes said the metro area offers more than 32,000 first-class hotel rooms, roughly twice as many as the GOP is likely to seek, but admits many are at some distance from the downtown arena.
...
Still, Republicans are expected to target Hispanic voters in 2016, which suggests that Phoenix may have an advantage. Tampa says it isn’t interested in the 2016 convention, but Miami could be a contender, especially if Republican Floridians like Sen. Marco Rubio or former governor Jeb Bush speed up their pursuit of the presidential nomination.

Cleveland and Columbus, both in Ohio, have also expressed interest in the 2016 GOP convention. Ohio is always a hotly contested presidential state.

Charlotte may seek the Republicans, and Salt Lake City may be involved as well.
...
Kansas City had been down this road before. It made serious efforts for the 1988 and 1996 Democratic conventions, and it has had informal discussions about other conventions since.

The city won’t bid on the Democrats’ 2016 gathering because it will be too big for the region, Hughes said. It has far more delegates and alternates than does the GOP.

Reflections on the Pope

DocJess — Mon, 01 Apr 2013 10:01:45 GMT

I like the new Pope. I like that on Holy Thursday, he wiped the feet of a young, incarcerated Muslim woman. I like that he is doing his best to avoid the trappings, but embrace the mission, of his new positions as both Pope and Bishop of Rome.

Pew data on Catholics:

Over the past century, the number of Catholics around the globe has more than tripled, from an estimated 291 million in 1910 to nearly 1.1 billion as of 2010, according to a comprehensive demographic study by the Pew Research Center.
But over the same period, the world’s overall population also has risen rapidly. As a result, Catholics have made up a remarkably stable share of all people on Earth. In 1910, Catholics comprised about half (48%) of all Christians and 17% of the world’s total population, according to historical estimates from the World Christian Database. A century later, the Pew Research study found, Catholics still comprise about half (50%) of Christians worldwide and 16% of the total global population.
What has changed substantially over the past century is the geographic distribution of the world’s Catholics. In 1910, Europe was home to about two-thirds of all Catholics, and nearly nine-in-ten lived either in Europe (65%) or Latin America (24%). By 2010, by contrast, only about a quarter of all Catholics (24%) were in Europe. The largest share (39%) were in Latin America and the Caribbean. Source and more data here.

Catholics are one of the groups that "shows" demographically when we speak about American politics, and the Pope is their leader. What he decides affects the faithful, and in the long run, politics. Sometimes, as in the case of birth control for personal use, American Catholics disagree with the Pope and the Rome minions, and that, too, affects political races.

I contend that of the head of all the religious groups in the world, the Pope is the most talked about. Perhaps it's because Vatican City is its own country.

So I look at this new Pope, with his commitment to the poor, and to the acceptance of other religions (two of his initial calls went to the Chief Rabbi of Rome and the head of the Eastern Orthodox Church, asking them to attend his installation as Pope) and I wonder if he won't be the person who will bring shame on those American Evangelicals who claim to be Christian, but discard all the teachings related to the poor, the unwashed, the downtrodden. Perhaps Bergoglio will be the religious man who affects American politics in a positive manner.

Cardinal Dolan, of NY, was on a Sunday show, and said the Church loves gay, but reiterated his opposition to gay marriage. New Yorkers overwhelmingly support gay marriage, and this includes a lot of NY Catholics: perhaps it will lead to people taking what they agree with from Bergoglio, and being sane about the rest of it.

Since I'm talking about Popes...my favourite anecdote relates to Pope John Paul the Second. Certainly you remember Ben Bradlee, Editor in Chief of the Washington Post during the time of Watergate, and boss to Carl Bernstein and Bob Woodward. Bradlee had a longstanding romance with Sally Quinn, a columnist for the Post. In fact, they lived together. She wanted to get married, he didn't want to get married for the third time. He told her that he'd marry her when the Pope was Polish. They've been married over 30 years now. Talk about direct papal influence.

Anyway, I'm hopeful about what changes Bergoglio could affect politically in America.

Sunday with the Senators: Self before Others

DocJess — Sun, 31 Mar 2013 21:57:34 GMT

In no particular order, Rand Paul, Marco Rubio, Ted Cruz, Mike Lee and Jim Inhofe are planning a filibuster on the gun control legislation coming to the floor of the Senate. Not a real filibuster, but one of the quiet ones where no one stands up and talks...rather one where they just don't let it get to the floor.

How appalling.

When Rand Paul filibustered a few weeks ago, he spoke of drones, and that led to a nationwide discussion. And you can respect him for doing so.

These five guys aren't going to get up and explain why they're opposed to background checks on all purchasers, nor any of the reasonable pieces included in the legislation, and supported by an overwhelming majority of Americans. They won't stand up because there is no real reason for the opposition, it's diametrically opposed to positions they take on other issues, and it will be entered in the record and used against them in future races.

Let's look at the background check thing. These five guys are in favour of even more stringent background checks for things like drivers licenses and voter registration. Driving is a lot less lethal that firing a gun, and voting is completely benign in terms of the direct taking of life. One could contend that a drunk driver can do a lot of harm, and that all the people who voted for Shrub caused a lot of death, but it's not the same as pointing a gun at someone and firing. Remember, Adam Lanza fired over 1,500 shots in just a few minutes.

They know that there are background checks for people buying guns through legitimate gun stores, but not at gun shows, nor private sales. In major cities, there is an issue of straw buyers: the requirement that the straw buyer would have to check the background of the criminal for whom he/she bought the gun....you know where this is going.

The most base explanation is that the majority of gun killings occur in poor, minority neighborhoods. I'm not calling these five guys racists, but if the shoe fits. Honest, check the statistics here....it strikes me that they like all sorts of legislation, like Stand Your Ground, that get minorities killed at a disproportionate rate. I can't think of another reasonable line of thought that explains why background checks are okay for gun stores but not gun shows. Or straw purchasers, but that goes without saying.

There is also the issue of cowardice. Opposed to background checks, and giant magazines, and everything else? Get up and say WHY. Put it on the record. Explain your beliefs. But these guys can't: especially Paul and Rubio who are both planning on running nationally in 2016.

Shame on you boys. Shame.

Want to do risky work for free?

DocJess — Thu, 28 Mar 2013 21:38:57 GMT

I tell this joke where I say that I want to weight 93 pounds, not to stay there, but to need to gain 30 pounds, and thus will get a job as a part time buttercream frosting taste-tester at my favourite local bakery. When people ask me if there is such a job, I reply that I'm sure if I pay the bakery enough, they'll give me the job.

Joke.

However, Wal-Mart is about to start getting people to do work for Wal-Mart at the person's own expense.

Truth.

When you look at the costs to drive your car, there's not just gas, but also oil, maintenance, depreciation, insurance. Wal-Mart is planning on paying people who shop in their stores just for the gas necessary to drop off packages at the homes of Wal-Mart customers on the store-shopper's way home.

Read it again.

It's hard to know where to start with all the things that are wrong with this. Do you want a stranger with a Wal-Mart package coming to your house, and then you open the door for him/her? What a GREAT way for rapists and pedophiles to troll around. What if you're a sweet young thing knocking on a stranger's door, and he says something like: "oh, it's hot outside, would you like a soda?"

Not to mention that Wal-Mart has hit the bargain basement in being unwilling to use what everyone else uses to ship, like FedEx, UPS, and the US Mail. Some places actually have their own trucks and make deliveries. Now that's mostly furniture and appliance stores, but it used to be a lot of them.

Now let's talk liability. Who says that package will ever get delivered? It's all on the honour system, and will Wal-Mart believe you when you say your package never arrived?

What if a package is damaged? Did it happen within Wal-Mart's supply chain, or on that last leg? There's really no good way to tell. Wal-Mart has already had problems with people buying one thing and getting another. Like buying an iPad and getting note pads. (The kind you write on.)

Yet another reason to avoid Wal-Mart at all costs.

Original source material here.

Today's #HCR Moment: Kansas to Quarantine HIV/AIDS Patients

DocJess — Thu, 28 Mar 2013 09:55:01 GMT

It's hard to imagine typing that headline in 2013. But before we get to the legislation itself, I keep thinking about Frank. Back in 1990, Frank came into my office. He had AIDS, and although that wasn't what he came to see me about, it certainly showed in his intake paperwork. I remember that first evening, after the last patient had gone, when I sat with my staff and asked them how they felt about accepting him as a patient. What we knew about AIDS back then was incredibly less than we know now. We didn't know if AIDS was passed by casual contact, we didn't know the risks to other patients. We knew practically nothing.

I had hired great people. The first question to me was whether I would be willing to treat him if I was the only person in the office. My answer was simple: I'm a doctor. I took an oath. My staff said that they worked for me, and while they hadn't taken any oaths, they too were committed to any patient we might be able to help. What we knew at the time was that bleach killed the AIDS virus, so we planned his visits as the last patient of the day, and then we bleached the office.

Back then, and before, there was talk about quarantining HIV/AIDS patients. It seemed so unreasonable, especially as the information was developing that casual contact couldn't possibly spread the disease. It seemed so cruel.

It's now 2013, and we know a ton about HIV/AIDS. How it spreads, how the new drug cocktails have changed the disease from a quick death sentence to a chronic condition. The idea of quarantining HIV/AIDS is ludicrous. These human beings pose no threat to the public health. And yet, that is what Kansas is poised to do.

This is the legislation. It changes the 1988 version of the law, and if you scroll to section 2, part (b), you'll see they are striking out the section that EXCLUDES HIV/AIDS from quarantine. The state Republicans claim they'll never actually use the law to quarantine patients, but there is still this:

“We live in a very conservative state and I’m afraid there are still many people, especially in rural Kansas, that have inadequate education and understanding concerning HIV/AIDS,” said Cody Patton, Executive Director of Positive Directions (PDIKS). “My fear would not be the state uses the law as some way to move all people living with HIV/AIDS into an isolated community, but that this law could allow some county employee to use this law to justify their religious beliefs over their professional responsibilities and discriminate against people with HIV/AIDS.” Source.

The Kansas Republicans would be named "worst of the week" if not for the North Dakota abortion and personhood bills that passed there, were signed by the Governor, and are going both on the ballot and to court.

It saddens and appalls me to write a post like this. Every time I read about yet another nasty, inhumane and stupid thing the Republicans are doing, I just want to scream. I keep thinking I'll become immune to their escapades, but the rising bile never seems to cease. HIV/AIDS patients are no more communicable than cancer or heart disease patients, and they are far less contagious than people with colds, flu and viruses. I have my philosophical questions about whether hell exists, but I am convinced that if it does, there's a special ring reserved there for today's Republicans.

The Supremes and Gay Marriage

DocJess — Wed, 27 Mar 2013 09:43:07 GMT

One of the most interesting things about the Prop 8 case in front of the Supremes yesterday related to "standing". That refers to whether the plaintiffs or defendants have an appropriate connection to the case, and whether they could suffer harm as an outcome of the case. Last December, the Supremes had agreed to take the case predicated on whether the lawyers could show standing under Article III, Section 2, of the Constitution. They may end up tossing the case because California, the state, will not defend Prop 8, and the idiots who are may well lack standing to do so. If so, the lower court rulings will stand, gays will be able to marry in California, and no other state will be directly affected. However, the Supremes may just toss the case. An excellent piece on the various potential outcomes is here.

Today's gay marriage case in front of the Supremes has gotten a lot less press, but is more fundamental, more along the lines of Loving v. Virginia back in the '60's. While the Prop 8 case is about whether gays can marry, United States v Windsor is about whether a legally married couple who are gay can be treated differently than a married couple which is straight by the Federal government. There will be an issue again of standing, but there is actual harm in Windsor which doesn't exist in the Prop 8 case.

The issue of "harm" in the Prop 8 case is predicated on the idea that if a gay couple is married to one another, then straight couples are harmed. This is ludicrous on its face, because it's absurd that the married gay couple down the block could possibly harm anyone by virtue of being married. Now, if they're bad neighbors because they let their dog roam the neighborhood leaving "messages" on your lawn, that's being a bad neighbor, it has nothing to do with being married. In my neighborhood, the people with the bad dog are a straight married couple, for example.

A full accounting of the Windsor case is here. Please read the accounting: not only is it fascinating, but it ties this case to the ACA case and the Commerce Clause. I can't recommend it strongly enough. The Cliff Notes version is that a couple was married in Canada after having been together for 40 years. A few years later, one of the spouses died, leaving an estate with a Federal tax bill of over $350,000, which would not have been owed had the marriage been recognized by the Federal government, as spouses can pass estates to the surviving partner free of tax. An argument is made that the Supremes should apply "heightened scrutiny" to the case because part of Ms. Windsor's brief points out that she was unable to live her life as an openly lesbian woman because of the huge amount of discrimination throughout her life against gays and lesbians. Ms. Windsor, by the way, is in her 80's. Talk about legal standing and direct harm.

One of the most interesting facets of the case is that the Obama administration has refused to defend the case, because they take the view that DOMA is unconstitutional. Who is defending? "BLAG", which is the Bipartisan Legal Advisory Group. It's bipartisan in name only, because the Democrats on the committee also believe that DOMA is unconstitutional, so this group is basically the same obstructionist teabaggers that are screwing up everything else in the House. Many briefs have been filed against DOMA, including one signed by a host of prominent Republicans, all of whom have retired from elected positions. BLAG contends that they have standing because this would cause fewer dollars to flow via the IRS to Federal coffers.

Yeah?

To me, it seems relatively straightforward:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That's Section 1 of the 14th Amendment, otherwise known as the Equal Protection Clause. Notice that it applies to states, BUT normally the Federal government is held to the same standard via the 5th Amendment, which insures due process:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis mine.)

I don't see anything in either Amendment that says "unless someone is not heterosexual." Do you?

The Supremes should take a lesson from my parents. When we were kids, my brother had a friend. She had all sorts of problems, but friends are friends. They lost touch after high school. Decades later, she found a phone number she thought might be his, but turned out to be mine. She called, and in the course of that call she asked me to give a message to our parents. "When I was a teenager," she said, "I was shunned by most people's parents. They knew I had problems and thought I was a bad influence. Your parents would see me, offer me a snack and something to drink, and make me feel welcome."

I related the story to my parents, who looked at one another, completely bewildered. Why, they asked, would we have treated her any differently than any of the other kids in the neighborhood? It would never have crossed their minds.

The time has come for the Supremes, in sum toto, to act like adults and realize that "no person" includes "all citizens" -- any colour, any religion, any gender, any sexual orientation.