On Chris Hayes & America’s Fallen Heroes

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I will admit I was watching the F1 Grand Prix de Monaco this morning and not Up With Chris Hayes on MSNBC. It turns out I missed some controversy. I was referred to the matter by Doug Mataconis of Outside the Beltway. Mataconis argued that it seemed like the wrong tone for Memorial Day.

The key quote from the article Doug cited, which was from Mediate, quoted Hayes where he says he feels:

…uncomfortable, about the word because it seems to me that it is so rhetorically proximate to justifications for more war. Um, and, I don’t want to obviously desecrate or disrespect memory of anyone that’s fallen, and obviously there are individual circumstances in which there is genuine, tremendous heroism, you know, hail of gunfire, rescuing fellow soldiers, and things like that. But it seems to me that we marshal this word in a way that is problematic. But maybe I’m wrong about that.

Chris Hayes is a young and very smart talent in the progressive media, and his show has been a beyond rare breath of fresh air generally in what is the pitiful morass of cable news programming. Hayes quickly showed why by referring critics to the video at right, which does indeed present a much fuller and more nuanced take on the issue. As Jeremy Scahill noted, Hayes is being mauled for taking such a deeper and more nuanced look at the issue of praise for war. I agree wholeheartedly with Jeremy.

But, still, I have some, granted also nuanced, qualms.

Contrast Hayes tact with that of Olivier Knox of Yahoo News on Friday:

Memorial Day Weekend: My thoughts inevitably drift to visits to the Normandy Beaches. More moving each passing year. Merci.
…
When I was a kid, it was hard to appreciate the “full measure of devotion.” Also my French grandparents hadn’t fully briefed me.

There is a palpable difference in tone between the initial takes of Knox and Hayes. While I originally instinctively gravitated toward the Knox take, the more I chew on it, I think Scahill has a point, and the more I think my knee jerk reaction to Hayes was a bit too reflexive and shallow. Here is why.

It is a generational thing to some extent, and the wider the age gap in people reacting to this, the generally wider the potential for adverse reaction. That, of course, is not totally the crux of the biscuit (as Frank Zappa would say), but I think it may be a large part of it.

Chris Hayes touched on a critical and under appreciated point: there is far too much cheerleading for war propagated through obligatory honor of the souls the powers that be send to fight the wars. It does cloud and mask the reality of what is transpiring on the greater moral and humanitarian stage, and does so very much to the detriment of society and the relevant discussion. That is just a fact in my book.

By the same token, the older voices among us, even those of us who grew up with the mess that was Vietnam, still grew up in the halo years of WW II, with the remnants of WW I that preceded it. When I think of Memorial Day, it is under a mental framework cast in those terms, that was still the framework conveyed in the 60’s and, even if lesser, still in the 70’s and 80’s. Vietnam was the aberration, not the norm, for a very long time when considering war and “war heroes”.

And that was me, a kid who mercifully avoided the draft and never served. I think the feelings could, and may well be, even stronger among those who did serve or, like Olivier Knox, who have land and families free today because of the last devotion expended on the beaches of Normandy or Okinawa.

To an older generation, and the differently situated, Memorial Day exists to honor true heroes. American soldiers who died so that you, me, Chris Hayes and everyone else may all have the discussions we do. The fact they gave what they did allows that. And, yes, they ARE heroes.

It is indeed a complex dynamic. Could Chris Hayes have exercised a bit more rhetorical discretion; no question. And he would be wise to not paint it quite as much as he does so primarily in terms of Afghanistan and, presumably, if not mentioned, Iraq (leaving aside Yemen and our other, um, areas of interest/conflict); there is a much larger and older framework, as Hayes himself cogently noted in his lead in.

But move beyond the patina of insensitivity, and Chris Hayes was quite right. We need desperately to unhinge the valor of our troops from the moral squalor of our leaders. Memorial Day may be a touchy time to hear that, but it needs to be said.

[Notice of Erratum: I would like to make quite clear that I do not think Chris Hayes and Olivier Knox are at any odds here; not at all. I simply found their initial takes demonstrative of the greater depth of the issue and discussion here, and illustrative of the point. Thanks to my friend Olivier for pointing that out]

ACA at SCOTUS: Some Thoughts On The Mandate

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As you likely know by now, we stand on the cusp of historic oral arguments this week in the Supreme Court on the Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare”. The arguments will occur over three days, for a total of six hours, Monday through Wednesday. Yes, they really are that historic, as Lyle Denniston explains in SCOTUSBlog. The schedule is as follows: Monday: 90 minutes on whether the Anti Injunction Act (AIJA) prevents consideration of a challenge to the individual mandate until it takes effect in 2014; Tuesday: Two hours on the Constitutionality of the individual mandate; and Wednesday: 90 minutes on severability of the main law from the mandate and 60 minutes on state sovereignty concerns of Medicaid reform.

There are two areas of particular interest for me and which really are the meat on the bone of the overall consideration. The first is Monday’s technical argument on the AIJA, which I actually think may be much more in play than most commentators believe, because the Supremes may want to punt the politically sticky part of the case down the road until after the 2012 elections, and the AIJA argument is a ready made vehicle to do just that. Judge Brett Kavanaugh’s dissent in Seven Sky v. Holder explains how that would go should the Supreme beings decide to punt. This is by no means likely, but do not be shocked if it occurs; can kicking down the road is certainly not unknown at SCOTUS on politically sensitive cases.

By far, however, the biggest, and most contentious, kahuna of the healthcare debate is the individual mandate, and that is where I want to focus. The two sides, pro (predominantly liberal left) and con (predominantly conservative right), have been selling their respective wares since before the law was passed and signed by the President. As we truly head into the arguments, however, the pro left have crystallized around a matched pair of articles by Dahlia Lithwick and Linda Greenhouse, and the con right around response pieces by James Taranto and Ed Whelan.

Now this hardly seems like a fair fight, as Taranto has no degree, nor legal training, whatsoever; that said he and Whelan actually lay out the contra to Dahlia and Linda pretty well. Each side effectively accuses the other of being vapid and hollow in argument construct. I will leave aside any vapidity discussion because I think both sides genuinely believe in their positions; as to the hollowness, though, I think both sides are pretty much guilty. Which is understandable, there is simply not a lot of law directly on point with such a sweeping political question as presented by the mandate. “Unprecedented” may be overused in this discussion, but it is not necessarily wrong (no, sorry, Raich v. Gonzales is not that close; it just isn’t).

In short, I think both sides are guilty of puffery as to the quality of legal support for their respective arguments, and I believe both are guilty of trying to pass off effective political posturing as solid legal argument. Certainty is just not there for either side. This is a real controversy, and the Supreme Court has proved it by allotting the, well, almost “unprecedented” amount of time it Read more →

The SCOTUS Merrygoround: Is Ginsburg Shuffle Coming?

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The UPI has an article up with the startling headline “Ruth Bader Ginsburg stepping down in 2015”. The article, which is really more of a pondering question, is bylined today by Michael Kirkland and paints the scenario of a Ruth Bader Ginsburg retirement in 2015 so that Obama has sufficient time left in his second term to appoint and confirm a successor.

Although referenced rather obliquely in his article, Kirkland’s basis is premised entirely on the thoughts and predictions of SCOTUS, AND SCOTUSblog, longtime pro Tom Goldstein in a SCOTUSblog post he did last Tuesday, February 14th. Goldstein may be only one voice thinking out loud, but he carries the bona fides to warrant serious consideration here.

Goldstein points to the confluence of Ginsburg’s age, health, and personal career tracking with that of Justice Louis Brandeis. And the thought that Ginsburg will want to see that her replacement is chosen by a Democratic President. Goldstein’s thought process, originally laid out in the comprehensive February 14th entry at SCOTUSblog, is worth reading. Assuming Obama is reelected, which is still a pretty decent bet at this point (certainly capable of changing though), it is hard to find fault with Goldstein’s logic; in fact, it is rather compelling. I also agree with Tom that none of the current conservative bloc, including swing man Tony Kennedy, are going anywhere anytime soon.

Where I do differ from Goldstein, however, is in his prediction for what would transpire upon the theorized Ginsburg tactical retirement:

Assuming that President Obama is re-elected and that Justice Ginsburg does retire at some point in the next Administration, who will be the next nominee? One thing is certain: it will be a woman. It is inconceivable that a Democratic administration with any reasonable choice would cause the gender balance of the Supreme Court to revert to seven men and two women. Relatedly, appointing three women in a row to the Court is excellent politics.

President Obama will also have a strong desire to pick an ethnically or racially diverse nominee. It would be disappointing for the nation’s first African-American President to make two white appointments, leaving the Court with seven white members. A more diverse Court is a better legacy. Given that the President already appointed the first Latina Justice, most likely is an African-American or Asian-American nominee. That said, I think race and ethnicity are plus factors, rather than an imperative like gender.

I am not sure I buy Goldstein’s certainty of yet another female Supreme Court nominee from Barack Obama. I am just not convinced Obama appoints a third woman in a row, color or not. It sure makes it easier that it would be to fill a “female seat”, Ginsburg’s, I guess, and Obama clearly wanted to see three women justices on the court. But he crossed said threshold, and knowing one of them may not be there so long into the future likely played into the strength of his desire to appoint a second woman after Sonia Sotomayor. Such is quite a different thing from having an abiding determination to insure there are always three women on the Supreme bench.

Further, it really restricts the pool of potential nominees and plays into a plethora of counter Read more →

9th Circuit Prop 8 Decision: Equal Protection NOT At The End Of The Rainbow

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Liberty & Justice by Mirko Ilic

The highly anticipated Ninth Circuit decision on the appeal from Judge Vaughn Walker’s groundbreaking opinion in Perry v. Schwarzenegger (now captioned “Perry v. Brown“) has arrived! IT IS A VICTORY for supporters of marriage equality and constitutional protection of sexual identity interests!

The full text of the decision is here. Authored by Judge Stephen Reinhardt, it is a long opinion discussing several key issues of law. Generally, they break down into three areas: 1) whether Vaughn Walker was qualified to sit as the trial judge in light of the fact he is an acknowledged homosexual, 2) whether or not the proponents of Proposition 8 (referred to in the trial court as “Defendant-Intervenors” or “D-I’s”) have standing to bring the appeal, and 3) whether or not the merits of Judge Walker’s decision trial court decision to grant constitutional due process and equal protection status to the plaintiffs Perry, and thus find that Proposition 8 is unconstitutional, should be upheld. We will take those in order.

Vaughn Walker’s Qualification

The new Chief Judge in the Northern District of California, James Ware, wrote a very strong opinion finding it completely proper for Walker to sit as the trial judge in Perry. And the 9th Circuit had already slapped down an attempt by the Prop 8 Proponents (hereinafter “Proponents”) to disqualify Panel Judge Stephen Reinhardt because his wife worked for the ACLU. So, it would have been shocking for the 9th to bite off on the nonsense that Vaughn Walker could not impartially serve as trial judge for the case. There is no shock delivered today, the 9th has joined Ware in blasting this craven argument, in fact the court states that it adopts Ware’s basis effectively in full.

Standing To Appeal

The issue of standing is arguably the most critical in the appellate case. Since the State of California made the calculated decision not to appeal and give the nominal cover their participation would provide to Proponents, if the Proponents do not have individual standing, there is effectively no appeal. There are actually two parties that have sought standing, the Proponents, and Imperial County of California through its court clerk.

As to Imperial County, I, along with others on the ECF mailing list got accidental notice of the court’s ruling yesterday when the 9th Circuit slipped up and transmitted the separate ruling on their motion to intervene in the appeal. It is denied as being untimely brought.

The Proponent’s intervention was certainly not untimely though, and it was unanimously certified by the California Supreme Court as being proper on the merits. In light of the strong decision finding standing for proponents by the California Supremes, after the 9th Circuit had asked them to make the determination, it would be pretty hard for the 9th to not follow the certified advice and grant standing. And they have done exactly that:

It is for the State of California to decide who may assert its interests in litigation, and we respect its decision in holding that Proposition 8’s Proponents have standing to bring this appeal on behalf of the state.

Constitutional Merits Issues

The big kahuna, of course, is whether or not Vaughn Walker’s meticulously laid out and reasoned decision granting protection to plaintiffs Perry under the Equal Protection and Due Process Clauses would be upheld. And, as I have consistently predicted would occur, the 9th has indeed upheld Judge Walker’s ruling. WAHOOOO!

It is a narrower and shallower victory than I had hoped and predicted though.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and social recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those opposite-sex couples. the Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 US 620, 633 (1996).

As I said, this is much narrower than hoped for. By basing on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.

Also of note, it is a split decision, with Reinhardt and Mike Hawkins joining the majority, and N. Randy Smith dissenting. Although Smith is a Mormon, and reasonably conservative, the strength of his dissent is somewhat surprising compared to his seeming attitude at oral argument of the appeal.

So, where does that leave us? With a good decision for those same sex couples wanting to marry in California, and one more likely than a broader decision to stand up to appeal. But, it is by no means certain that even this narrow ruling will maintain; if the case was going to go to SCOTUS, it should go with all the gusto and Constitutional protection afforded that it can muster for all the same sex couples, in all the states, not just California. Today’s decision falls shamefully short of that. It is somewhat of an embarrassment for one of the last great liberal lions like Steve Reinhardt actually. I have to believe he was choked somewhat by Mike Hawkins, but, frankly, such is surprising to me based on my knowledge of Hawkins, even though he is not nearly the wild eyed liberal Reinhardt is.

Not only is the decision disappointing, but it will likely also be stayed pending further review as well. so not even relief for those in California is in the offing anytime soon. Sigh.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

The False Report of Banned Books In Tucson: The Tempest in the Arizona Teapot

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Last Friday afternoon, author Jeff Biggers published an article at Salon entitled Who’s Afraid of “The Tempest”? The cognitive lede, and framing for the article as a whole, is contained in the first sentence:

As part of the state-mandated termination of its ethnic studies program, the Tucson Unified School District released an initial list of books to be banned from its schools today.

Biggers goes on to report and discuss on a litany of books and textbooks – even Shakespeare’s The Tempest – that were removed from Tucson Unified School District (TUSD) classrooms:

Other banned books include “Pedagogy of the Oppressed” by famed Brazilian educator Paolo Freire and “Occupied America: A History of Chicanos” by Rodolfo Acuña, two books often singled out by Arizona state superintendent of public instruction John Huppenthal, who campaigned in 2010 on the promise to “stop la raza(sic).

It is a rather stunning, and alarming, report fashioned by Mr. Biggers and, little wonder, it swept like fire across the progressive internet, and social media like Twitter and Facebook over the King Holiday weekend. Biggers’ Salon article served as the basis for reportage of the banning of books, including Shakespeare’s The Tempest, in a plethora of media sources from such internet venues as AlterNet, to mainstream media like The Tucson Citizen, New York Daily News, and The Wall Street Journal.

There is only one problem with this story. It is categorically and materially false. No books have been banned in Tucson by the TUSD, much less Shakespeare’s classic, The Tempest.

Sensing that Biggers’ story did not sound correct, nor comport with my understanding of the law in this subject area here in Arizona, I was able to make contact with officials at TUSD over the Martin Luther King extended holiday weekend and spoke with an official on Monday, even though the school system was officially closed. It is an understatement to say they were dismayed and concerned; it is “disingenuous to say ‘banned'” said Cara Rene, Communications Director for the TUSD.

Indeed, upon returning to their offices Tuesday, the TUSD put out, through Ms. Rene, an official News Release stating:

Tucson Unified School District has not banned any books as has been widely and incorrectly reported.

Seven books that were used as supporting materials for curriculum in Mexcian American Studies classes have been moved to the district storage facility because the classes have been suspended as per the ruling by Arizona Superintendent for Public Instruction John Huppenthal. Superintendent Huppenthal upheld an Office of Adminstriation Hearings’ ruling that the classes were in violation of state law ARS 15-112.

The books are:
Critical Race Theory by Richard Delgado
500 Years of Chicano History in Pictures edited by Elizabeth Martinez
Message to AZTLAN by Rodolfo Corky Gonzales
Chicano! The History of the Mexican Civil Rights Movement by Arturo Rosales
Occupied America: A History of Chicanos by Rodolfo Acuna
Pedagogy of the Oppressed by Paulo Freire
Rethinking Columbus: The Next 500 Years by Bill Bigelow

NONE of the above books have been banned by TUSD. Each book has been boxed and stored as part of the process of suspending the classes. The books listed above were cited in the ruling that found the classes out of compliance with state law.

Every one of the books listed above is still available to students through several school libraries. Many of the schools where Mexican American Studies classes were taught have the books available in their libraries. Also, all students throughout the district may reserve the books through the library system.

Other books have also been falsely reported as being banned by TUSD. It has been incorrectly reported that William Shakespeare’s “The Tempest” is not allowed for instruction. Teachers may continue to use materials in their classrooms as appropriate for the course curriculum. “The Tempest” and other books approved for curriculum are still viable options for instructors.

Oh, my, that is fundamentally and materially different than what Mr. Biggers both stated, and inferred, isn’t it? It was excessive and inflammatory hyperbole, and that is not a good thing as it paints the TUSD, and the Arizona school and educational system in a false, and prejudicially negative, light. I know many teachers and administrators in the Phoenix area, and they were outraged. “Banning of books” is an extremely negative concept both emotionally and legally; it is an extremely serious allegation, and not one to be made lightly or inaccurately.

There are a LOT of very good people in the State of Arizona, and the bad that is going on here (and there IS plenty of bad too) should be painted large and loud for what it is, but not in brush strokes so big and hyperbolic as to give a false picture of the story and state. I dislike the existence and effect of HB 2281, the law that has created this controversy over ethnic studies, every bit as much as Mr. Biggers honestly seems to; but do not want that to be used as a whipping post to make Arizona an ogre in ways it truly does not deserve. And that was the effect of his January 13, 2012 article in Salon.

You would probably think this particular story, and my report on it, ends here for now. It does not and, for once, that is a very positive thing. Over the King Holiday weekend, in addition to contacting the TUSD, I also contacted Salon regarding my concerns. They were, under the circumstances, both cordial and professional. Early this afternoon a notice of correction was placed at the bottom of the original story, and a new report by Jeff Biggers, far more accurately portraying the facts on the ground in Tucson, was published by Salon. Salon, and its editors, are to be commended and applauded for their willingness to listen and act responsibly.

Which brings us to the bigger picture. Demagoguery and hyperbole are something that all of us do who write on emotional hot button issues; which are about the only kind of issues we do here at Emptywheel. I have noticed the same phenomenon in the progressive blogosphere and media acutely prevalent on torture, Bradley Manning, Occupy Wall Street and, just recently, the NDAA. Emotion and illustration are good; facts and truth are better.

The Corporatist Free Speech Superiority of the Roberts Court

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Adam Liptak has a pretty interesting article up in today’s New York Times on the relative free speech strength of the Supreme Court under the leadership of John Roberts.

The Supreme Court led by Chief Justice John G. Roberts Jr., the conventional wisdom goes, is exceptionally supportive of free speech. Leading scholars and practitioners have called the Roberts court the most pro-First Amendment court in American history.

A recent study challenges that conclusion. It says that a comprehensive look at data from 1953 to 2011 tells a different story, one showing that the court is hearing fewer First Amendment cases and is ruling in favor of free speech at a lower rate than any of the courts led by the three previous chief justices.

It is no joke that such has been the “conventional wisdom” about free speech in the Roberts era. The validity and veracity of that claim have always mostly escaped me though, and not solely, nor even predominantly because (as the eminent Floyd Abrams argues in Adam’s piece) because of the dreaded progressive evil hobby horse, Citizen’s United.

The root numbers derive from an article by Monica Youn at the American Constitution society’s ACSBlog, which in turn were reviewed for NYT by Lee Epstein and Jeffrey Siegal, who previously wrote a comprehensive law review article (excellent I might add) on the topic in the Journal of Law & Policy. While the root numbers and percentages are interesting, and certainly support the proposition that the Roberts Court is really not all that on the First Amendment free speech protection; they really do not tell the full story of how much, and why, this is really the case.

While both Liptak and Youn discuss some of this depth, I want to emphasize the real nature of the intellectual, and ideological, dichotomy of Roberts court jurisprudence. The Roberts Court has indeed engaged in some notable free speech engagement, but it has been almost entirely in the service of what I would call the “corporatist ideology”. The corporatist ideology is not limited to just corporations and their investors that underpin them, but also to the governmental and military/industrial complex that is now one with business power.

I do not know that I have ever seen a better description of the corporate/government linkage than that offered by Montana Supreme Court Judge Nelson in his dissent in the recent Western Traditions case:

The truth is that corporations wield inordinate power in Congress and in state legislatures. It is hard to tell where government ends and corporate America begins; the transition is seamless and overlapping.

Oh so true, and the same increasingly applies to the courts as well, especially via the Federalist Society mindset that courses rampant in federal courts, including at SCOTUS in the Roberts conservative bloc.

This manifests itself in the legal and factual nature of the Roberts Court’s free speech jurisprudence. As Liptak points out, a “majority of the Roberts court’s pro-free-speech decisions Read more →

A Note About OWS and Pre-Trial Diversion in Los Angeles

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I have seen a lot of garment rending on Twitter and in discussion forums I participate in about the Los Angeles Times report that a pre-trial diversion option is being offered to some Occupy Wall Street-Los Angeles protesters:

Many Occupy L.A. protesters arrested during demonstrations in recent months are being offered a unique chance to avoid court trials: pay $355 to a private company for a lesson in free speech.

Los Angeles Chief Deputy City Atty. William Carter said the city won’t press charges against protesters who complete the educational program offered by American Justice Associates.

He said the program, which may include lectures by attorneys and retired judges, is being offered to people with no other criminal history and who were arrested on low-level misdemeanor offenses, such as failure to disperse.

“Tin eared!” “Propaganda!” “Re-Education!” “Stupid!” “Tone-deaf!” “By a private corporation??” “Seriously, LA, this is the worst ever!” “Unbelievable!”

Those are a smattering of the responses I saw, and all are from people I know and respect greatly. And they are all wrong to take such umbrage at this report. Here is why.

Pre-trial diversion of criminal misdemeanor charges is an extremely common tool in municipal and other misdemeanor courts (and in some felon courts on the lowest grade offenses such as marijuana possession). It is, from a policy perspective, considered a win-win for both sides; the state and taxpayers avoid the cost of processing the defendant through the court system, and the defendant avoids having a conviction on their record (often avoid even having a formal charge lodged). But whether or not to offer pre-trial diversion lies entirely within the prosecutorial discretion of the state’s attorney. It is an option that can be offered, but certainly is not mandatory.

Just as pre-trial diversion is a voluntary option that does not have to be offered in the first place, the decision on whether to accept the offer is entirely up to the individual facing the charge. There is no punishment whatsoever for declining – none – they will stand in the EXACT same position vis a vis the state as if they had not been offered pre-trial diversion at all, i.e. there will be a municipal offense that has either been charged, or is pending charge, with a one year statute of limitation running.

There has been a hue and cry that – gasp! – the program will be administered by – gasp! – a private company. Well, they always are. I have never seen a diversion program with an educational component that was not farmed out to a private or non-profit outside entity. That is simply how it is done; cities and individual courts are not structured and funded to have classrooms, instructors and curriculum for these matters. And, being as it is a discretionary option to resolve outside of the criminal process (most are contractual, not court compelled) it just does not make fiscal or judicial sense to have it run by the court or state.

As to the content suggested for this particular diversion program offer, it is precisely what you would expect to be offered under the circumstances. Pre-trial diversion at the misdemeanor level almost always involves a perfunctory remedial/instructive class in the subject of the offense. This is the case with defensive driving class to get out of a ticket, it is the case with anger management for assault and domestic violence, it is the case for shoplifting and solicitation programs as well. For the OccupyLA cases, it is hard to imagine a more appropriate subject than a free speech centered Read more →

A Rancid Foreclosure Fraud Settlement Trial Balloon, Herbert Obamavilles, What Digby Said & The Import of the Occupy Movement

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I do not usually just post simply to repeat what another somewhat similarly situated blogger has said. But late this afternoon/early this evening, I was struck by two things almost simultaneously. Right as I read Gretchen Morgenson’s latest article in the NYT on the latest and most refined parameters of the foreclosure fraud settlement, I also saw a post by Digby. The intersection of the two was crushing, but probably oh so true.

First, the latest Foreclosure Fraud Settlement trial balloon being floated by the “State Attorney Generals”. There have been several such trial balloons floated on this before; all sunk like lead weights. This is absolutely a similar sack of shit; from Morgenson at the NYT:

Cutting to the chase: if you thought this was the deal that would hold banks accountable for filing phony documents in courts, foreclosing without showing they had the legal right to do so and generally running roughshod over anyone who opposed them, you are likely to be disappointed.

This may not qualify as a shock. Accountability has been mostly A.W.O.L. in the aftermath of the 2008 financial crisis. A handful of state attorneys general became so troubled by the direction this deal was taking that they dropped out of the talks. Officials from Delaware, New York, Massachusetts and Nevada feared that the settlement would preclude further investigations, and would wind up being a gift to the banks.

It looks as if they were right to worry. As things stand, the settlement, said to total about $25 billion, would cost banks very little in actual cash — $3.5 billion to $5 billion. A dozen or so financial companies would contribute that money.

The rest — an estimated $20 billion — would consist of credits to banks that agree to reduce a predetermined dollar amount of principal owed on mortgages that they own or service for private investors. How many credits would accrue to a bank is unclear, but the amount would be based on a formula agreed to by the negotiators. A bank that writes down a second lien, for example, would receive a different amount from one that writes down a first lien.

Sure, $5 billion in cash isn’t nada. But government officials have held out this deal as the penalty for years of what they saw as unlawful foreclosure practices. A few billion spread among a dozen or so institutions wouldn’t seem a heavy burden, especially when considering the harm that was done.

The banks contend that they have seen no evidence that they evicted homeowners who were paying their mortgages. Then again, state and federal officials conducted few, if any, in-depth investigations before sitting down to cut a deal.

Shaun Donovan, secretary of Housing and Urban Development, said the settlement, which is still being worked out, would hold banks accountable. “We continue to make progress toward the key goals of the settlement, which are to establish strong protections for homeowners in the way their loans are serviced across every type of loan and to ensure real relief for homeowners, including the most substantial principal writedown that has occurred throughout this crisis.”

Read the full piece, there is much more there.

Yes, this is certainly just a trial balloon, and just the latest one at that. But it is infuriating, because Read more →

Commercializing Campaign Ads: California Roll For Mayor

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We have an interesting phenomenon underway here in Phoenix – the outright commercialization of political campaign ads. It is the handiwork of a Scottsdale sushi restaurant, Stingray Sushi. In short, a corporation is using a political race as a straight up advertising vehicle for their product, without officially supporting or donating to either candidate. The ploy started off just riffing on hot button political issues such as:

“Bill Clinton Likes My Sushi”
“Larry Craig Likes Our Bathrooms”
“Blagojevich is the Best Tipper”

Stingray then morphed into playing off of a local initiative drive on the ballot. But now they have stepped square into a heated political race between competing candidates.

The current, and heaviest manifestation of this novel activity by Stingray to date, is the current Phoenix Mayor’s race, which will be decided on November 8. The race itself is supposedly non-partisan, however it pits longtime uber-Republican operative Wes Gullett, who was the chief of staff for disgraced (and convicted) Governor Fife Symington and has served in several administrative and campaign capacities for John McCain over the years, against a moderate, but fairly clear Democrat, former City Councilman Greg Stanton.

If the question is “is this legal”? Yes, it appears to be quite legal under both state and federal campaign law, although Stingray has had to put stickers on their signs advising that it is “Not authorized by any candidate or candidate’s campaign committee.”

The ad campaign is the brainchild of a local ad and political consultant by the name of Jason Rose. I will have to give Jason credit here, it is pretty inventive and has certainly captured the imagination of Phoenix residents. Everybody has seen them, even my high school daughter talks about them. My wife thinks they are hilarious catch phrases now. Anytime I mention politics, she blurts out “Mayors Are Yum Yum!”.

Now, here is the better question – where does this go from here? Stingray is playing both sides of the electoral race fence in this campaign, but it is hard to believe others necessarily will do the same. Will bigger corporations exercise their right to free political speech decreed in Citizens United by branding themselves to a particular candidate? Is it a good thing to have electoral races clouded by raw corporate advertising pitches as opposed to actually taking a side?

I honestly do not know the answers to the questions raised, not the plethora of others that arise from this ad campaign. But I doubt it is a one off deal, you can expect to see other similar ad campaigns attached to elections in the future. What do you think??

Taking Back Wall Street Trash Talk

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Well we are a little late getting started on the trash talk this weekend, I apologize about that. I have been fixated on the Anwar Awlaki scenario and, today, the Occupy Wall Street effort. In honor of the citizens trying to take back the Street in New York, this week’s music is by Jimmy Cliff; you can get it if you really want it. But, you must actually try.

That, folks, is what is meant by the term “a democracy, if you can keep it”. The people still have the power, the people still have the vote; but they must have the information, and they must have the desire to exercise their power. Our friends and colleagues at FDL, via Kevin Gosztola, are doing great work covering the protests. And, if you have seen what I have on Twitter, it really appears to be something significant starting to form in the Big Apple. I am told about 400 people have been arrested; let’s hope they are replaced by 4,000 others.

Quite frankly it is a rather lackluster day in college football, the only 2 games I really had my eye on are Nebraska at Wisconsin, and 13th ranked Clemson at 11th ranked Virginia Tech. The Clemson game is already over, with the Tigers laying an unheard of whipping on Frank Beamer and the Hokies in Blacksburg. Not so for the Badgers however, the Cornfuckers are in Camp Randall right now with the Huskers up by a point 14-13. The rest of the game should be something fun, and the quarterback for Wisconsin, Russell wilson is really a special kid.

On the pro end of things, it is really not a very enticing slate of games on tap. Seriously there are like three games worth watching. The first is the Stillers at the Texans. Normally, this would be an easy call; but Pittsburgh has not settled in yet this season, and Houston has a fine team and is at home. That is a pickem. The second decent tilt, and maybe my most anticipated game, is Deetroit at Dallas. The Kittehs are THE hot team this year, and Suh is gonna be Romo rib hunting. But the ‘Boys are a little tougher than people think, and are at the JerryDome. I am leery of this, but am still going to go with the Lions. The other game tomorrow of interest is the Pats at the Black Hole to visit those nice Raider chaps. Darren McFadden got a bit nicked up in his huge day against the Jets, Jets, Jets last week, but looks good to go tomorrow. Marcy smells a Rayduhs upset here. So do I. Honorable mention to the Jets versus Ravens on NBC’s Sunday Night Football. It’s in Baltimore, gonna go with the home team there.

Lastly, it is October baby. Reggie Jackson time! and playoff baseball is in full swing. Unless the game is at Yankee Stadium, in which case it is in full swim. Tampa Bay just clocked the Rangers behind 22 year old rookie sensation Matt Moore to open the series, but Texas is up 7-3 in the 7th inning tonight. Oops, Eva Longoria just hit a three run tater to bring it to 7-6. Rays are like butter. On a roll. Diamondbacks got freaking smoked by the BrewCrew today in game one of the NLDS. Arizona has the youngest team in baseball and has been on a great run this year, but still may be a year and another starting pitcher away from being serious contenders. Never count out Kirk Gibson though, and the DBacks are Gibby’s team through and through.