Sunday, September 08, 2013

In 2011, Obama freed NSA from restraints on domestic spying that Dubya requested in 2008

You will search this WaPo story, entitled "Obama administration had restrictions on NSA reversed in 2011," without success for any mention of the Forty-Third President of the United States of America, even though his administration did not depart the White House until January 20, 2009. And yet:

The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material.

In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinion by U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court.

What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.

I think my post's headline above ought to have been the Washington Post's headline too — but surely somewhere in this report, they ought to have at least acknowledged the contrasting positions of the only two post-9/11 administrations.

Posted by Beldar at 03:40 PM in Global War on Terror, Law (2013), Mainstream Media, SCOTUS & federal courts | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 07, 2013

Is Maj. Nidal Hasan cooperating with military prosecutors in an attempt to achieve "suicide by court-martial"?

Law enforcement officials are familiar with the typical pattern of "suicide by cop." But if accurate, this news article (which the Austin American-Stateman continues to update since I first saw it) suggests that Maj. Nidal Hasan may be trying to commit jihadi suicide by court-martial:

Maj. Nidal Hasan’s standby defense attorneys said Tuesday morning that they believe the accused Fort Hood shooter is "effectively acting in concert with prosecutors in achieving a death sentence."

In a motion filed late last night, Lt. Col. Kris Poppe said that Hasan’s behavior during jury selection, when he made no effort to keep potential jurors who questioned the death penalty, as well as his opening statement in which he took responsibility for the shootings show that he is trying to "remove impediments and obstacles to the death penalty."

Poppe and the two other military appointed defense lawyers asked to be removed from the case, but said they also stand ready to represent Hasan "if he decides he wants to fight the death penalty." ...

In American law (including military law), the right to defend oneself — even when that's a stupid and even suicidal path to choose — is guaranteed under the Constitution. Hasan has invoked that right and has persuaded the presiding judge that he's competent to make that decision, so he's defending himself.

unidentified soldier at memorial to the victims of the Fort Hood massacreBut as would also be nearly universal even in the civilian criminal justice system, the judge appointed "standby counsel" who would observe the proceedings and continue to counsel with Hasan privately to whatever extent Hasan permits that. The notion is that their private advice — which will always almost certainly be, "You're screwing this up, you're going to get yourself executed, let me please take over as your advocate in court to try to save your life!" — might eventually be heeded. And then the standby counsel is as prepared as practicable to immediately step in as the defendant's active advocate(s).

My guess is that what's happening today is that the presiding judge, Col. Tara Osborn, is going to re-visit the subject of Hasan's competency to make the decision to continue to represent himself. If only for purposes of future appeals, the judge will want to make a record of having done that (although the jurors won't know anything about it).

This same sort of thing has happened in civilian death penalty cases before — albeit not usually with the same jihadi motivations that Hasan has. But neither the civilian or military justice systems permit defendants to "game" them by first insisting on self-representation and then later insisting that they should get a new trial because their trial counsel (i.e., they themselves acting as their own lawyers) rendered constitutionally ineffective assistance. Basically, if the record shows that the choice of self-representation was freely made by someone legally competent to make it, both trial and appellate courts will let the consequences of that choice lead in their natural direction — even though the result at least superficially looks like state-assisted suicide.

It's also interesting that the standby counsel are asking permission to withdraw from that role. That's their putting on record their recognition that Hasan is ignoring everything they tell him, and that he's making it impossible for them to do their job effectively, but they will leave to the judge's decision whether some replacement might be able to do better. That's the proper and ethical thing for them to have done.

My guess is that the judge will probably reconfirm her earlier ruling that Hasan is mentally competent to make the decision to represent himself. The judge will repeat, on the record, her previous cautions and admonitions and get Hasan to reconfirm his decision on the record — again, outside the jury's presence. The judge will then probably politely deny the standby counsel's suggestion that they be replaced and tell them to keep standing by and doing their best to make themselves relevant.

I am content in all of this. The wheels of justice are slow but grind exceedingly fine. And in this battlefield in the war on terror — and that's exactly how Hasan himself sees the courtroom he's in — the terrorist is once again eager to be killed. Unlike the battlefield soldier, the military judge and jurors presiding over Hasan's trial aren't eager to kill him, but rather to see justice done and be seen to be done. But the end result is going to be the same.

Posted by Beldar at 12:36 PM in Global War on Terror, Law (2013) | Permalink | Comments (9) | TrackBack (0)

Sunday, July 21, 2013

Early observations on an experimental family e-library and e-bookclub using Kindles

Instapundit Glenn Reynolds writes today that his Kindle Paperwhite has "replaced [his] iPad as [his] favorite device for reading Kindle books":

The backlighting is the key. It’s light, battery lasts a long time (longer than the iPad), it charges quickly (faster than the iPad), and it’s very clear and easy to read in all kinds of light, from bright sunshine to a dark room. And of course, it’s much, much cheaper [than an iPad].

To all of which, I say: Ditto. I bought one of the first Paperwhites last fall, and I like mine so much that I made this product the basis for a family e-book club.

PaperwhiteSpecifically, I've given four Kindle Paperwhites, plus two older Kindle models I'd purchased in 2010 and 2011, to my four college-age kids and two of their best friends. All these devices are associated with my Amazon Prime account, and as the group's sponsor I encourage the members to make responsible e-book purchases through Amazon using their devices. Those purchases are of course billed to my Amazon account — like many parents, I've never regretted buying books for my kids! — and each purchase generates an emailed invoice to me, which helps me keep track of new additions to our collective e-library and its ongoing costs.

Here's how the Kindle system multiplies the already formidable convenience and economics of e-books for a family e-library, though:

Most of Amazon's Kindle books include licensing rights for multiple copies of e-books to be downloaded simultaneously to six different devices. (The precise number is set by the publisher of each book, I gather — I wonder if that was another one of Apple's ideas or something the publishers insisted upon on their own?) Not everyone in our group can simultaneously be reading the same book, then. But then again, six copies at any one time is quite a few: What home library has as many as six copies of on-dead-trees books available for simultaneous checkout? When you remove a copy from one Kindle or other e-reader device, it automatically frees up the license rights for another free and nearly-instant download on any of my account's devices, so even the six-copy limitation turns out to have a trivial and rare effect on us.

And although we have a total of seven Kindle devices among us, there are actually more e-readers than that associated with my account. With the Kindles' autosync via WiFi capability, I also use my smartphone and a free Amazon Kindle app as an additional e-reader — which lets me pick up with the same book I'm reading on my Paperwhite on my smartphone, in exactly the same spot, whenever I happen to find myself standing in line or eating out alone.

(I opted to forgo the more expensive Paperwhite models with the built-in 3G wireless capability to augment the built-in WiFi. However, my smartphone can sync using either 4G or WiFi, and my Paperwhite back home will sync to where I leave off reading on my phone too. We don't think our group members need, or would much use, wireless on our Paperwhites, but YMMV and for some of you the additional cost may be justified.)

As I'd hoped, many of the books that one of us buys are ending up being read by more than one of us — and sometimes (e.g., the Game of Thrones series) by all or almost all of us. And as I'd also hoped, we're trading book recommendations and discussing books more frequently. Our "family book club" doesn't have meetings or circulate memos; instead these shared books become evolving, continual topics of occasional conversation whenever any two or more of us happen to feel like chatting (in person, on Facebook, or wherever) about something we've just read.

For those who worry that this might be "cheating" or that they'll get sued under the DMCA: I haven't studied the fine print in Amazon's sales and licensing agreements, but I emailed Amazon's customer support folks about my family book club plan before buying the additional Paperwhites last December. They replied that Amazon is perfectly happy to sell on those terms, which include the understanding that I'm maintaining financial responsibility for the purchases made by the responsible young adults to whom I've entrusted what are, legally, still "my Kindles" and "my [licensing rights to Amazon-purchased] e-books."

Finally: my older daughter just returned from a month's volunteer work in Nepal, where her internet access was limited and infrequent. She reports that she got more use and more satisfaction out of her Kindle than from any other gadget she had with her.

So far, then, I've been very happy with this ongoing plan and the return I'm getting on my investment. These Kindles don't suck at all. If you decide to buy one, I recommend doing it through either Instapundit's site or your other favorite blogger who's an Amazon Associates participant. (I'm not any longer; Beldarblog is nonprofit for the additional freedom that buys me with respect to "fair use" copyright issues.)

Posted by Beldar at 05:31 PM in Books, Family, Technology/products, Web/Tech, Weblogs | Permalink | Comments (3) | TrackBack (0)

Wednesday, July 10, 2013

Reactions upon reading today's court ruling against Apple in the ebook price-fixing conspiracy case

I ought to have simply done this as a blog post to begin with, but:

When I started reading U.S. District Judge Denise Cote's written opinion in United States v. Apple Inc. this evening, I originally only intended to post a link to the opinion, with a very short comment, on Facebook, mostly for a few of my legally-inclined friends. But then I started leaving comments on my FB post, and it turned into a sort of "live-blogging" as I worked through the opinion.

Eventually I decided I ought to re-post it all here for a broader audience, with apologies for the disjointed format:

Ipad_ibook_reader

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Apple lost in court in New York today on the ebook antitrust case brought jointly by the Justice Department and several states (including Texas). U.S. District Judge Denise Cote's opinion is 160 pages (double-spaced), so it will take me a while to read it. But from the summary of findings (beginning on page 9 of the .pdf file), it looks like a major defeat for Apple. This paragraph (from page 11) seems key in my initial skim:

Apple and the Publisher Defendants shared one overarching interest — that there be no price competition at the retail level. Apple did not want to compete with Amazon (or any other e-book retailer) on price; and the Publisher Defendants wanted to end Amazon’s $9.99 pricing and increase significantly the prevailing price point for e-books. With a full appreciation of each other’s interests, Apple and the Publisher Defendants agreed to work together to eliminate retail price competition in the e-book market and raise the price of e-books above $9.99."

Here's a link if you're interested:

http://www.justice.gov/atr/cases/f299200/299275.pdf

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I hadn't realized that 38 different states had joined in this litigation, but I'm pleased to see that the Texas and Connecticut attorneys general were "liason counsel for the plaintiff states" (i.e., carried the ball and probably did most of the work for all the other state plaintiffs).

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The financial impact on Apple is uncertain, but treble damages loom: "The Plaintiffs have shown that Apple conspired to raise the retail price of e-books and that they are entitled to injunctive relief. A trial on damages will follow." And at that trial the question won't be whether Apple has to pay — today's ruling effectively decides that against Apple — but just how much, and to whom.

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No jury was involved in this, by the way. By consent of all parties, there was a bench trial in which Judge Cote served as factfinder in lieu of a jury.

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CEO Les Moonves of CBS (which owns Simon & Schuster, one of the defendants who settled before trial) is pegged as a major conspirator. I remember him from Rathergate.

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In footnote 38 on page 71, Judge Cote labels Apple Sr VP Eddy Cue's trial testimony as not being "credible" — which is the polite way to say she thinks Cue was lying under oath on at least some points. The factual recital is just brutal. Apple comes across as the proverbial 800 pound gorilla who bullied not only the consuming public and Amazon (which was fighting to keep ebook prices low), but Apple's fellow conspirators, five of the six big publishing companies. Appellate courts are particularly reluctant to overturn credibility determinations by the factfinder, whether that's been a judge or a jury. Apple's going to have a hard time digging its way out of the hole it's dug for itself.

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From pp. 85-86 of the .pdf file:

On January 27, Jobs launched the iPad. As part of a beautifully orchestrated presentation, he also introduced the iPad’s e-reader capability and the iBookstore. He proudly displayed the names and logos of each Publisher Defendant whose books would populate the iBookstore. To show the ease with which an iTunes customer could buy a book, standing in front of a giant screen displaying his own iPad’s screen, Jobs browsed through his iBooks “bookshelf,” clicked on the “store” button in the upper corner of his e-book shelf display, watched the shelf seamlessly flip to the iBookstore, and purchased one of Hachette’s NYT Bestsellers, Edward M. Kennedy’s memoir, True Compass, for $14.99. With one tap, the e-book was downloaded, and its cover appeared on Jobs’s bookshelf, ready to be opened and read.

When asked by a reporter later that day why people would pay $14.99 in the iBookstore to purchase an e-book that was selling at Amazon for $9.99, Jobs told a reporter, “Well, that won’t be the case.” When the reporter sought to clarify, “You mean you won’t be 14.99 or they won’t be 9.99?” Jobs paused, and with a knowing nod responded, “The price will be the same,” and explained that “Publishers are actually withholding their books from Amazon because they are not happy.” With that statement, Jobs acknowledged his understanding that the Publisher Defendants would now wrest control of pricing from Amazon and raise e-book prices, and that Apple would not have to face any competition from Amazon on price.

The import of Jobs’s statement was obvious. On January 29, the General Counsel of [Simon & Schuster] wrote to [the CEO of S&S, Carolyn] Reidy that she “cannot believe that Jobs made the statement” and considered it “[i]ncredibly stupid.”

Yeah, I agree that it was incredibly stupid. And arrogant. Jobs was bragging in public about the price-fixing conspiracy that his company had organized and executed to fix ebook prices. The reason the publishers were threatening to withhold their books from Amazon altogether was because that was the key term in the conspiracy that Apple was proposing. Unless Amazon agreed to knuckle under to the "agency pricing" model that Apple wanted (because it would eliminate retail price competition in ebooks, to Apple's benefit, and let Apple compete with Amazon on the basis of hardware, never price) — Amazon wouldn't be able to sell ebooks at any price.

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This whole fact pattern would never make a good exam question in an antitrust course in law school. It's way too easy. There's an arsenal of smoking guns. It's like no one at Apple ever heard of the Sherman Act.

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Maybe you aren't an ebook buyer, and because you only buy paper books, you think this conspiracy didn't affect you. Nope (p. 95): "The Publisher Defendants raised more than the prices of just New Release e-books. The prices of some of their New Release hardcover books were also raised in order to move the e-book version into a correspondingly higher price tier."

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From p. 103, Jobs is quoted as making the following brag — actually, a stunning admission to which he was blinded by his egotism — to his biographer:

Amazon screwed it up. It paid the wholesale price for some books, but started selling them below cost at $9.99. The publishers hated that — they thought it would trash their ability to sell hardcover books at $28. So before Apple even got on the scene, some booksellers were starting to withhold books from Amazon. So we told the publishers, “We’ll go to the agency model, where you set the price, and we get our 30%, and yes, the customer pays a little more, but that’s what you want anyway.” But we also asked for a guarantee that if anybody else is selling the books cheaper than we are, then we can sell them at the lower price too. So they went to Amazon and said, “You’re going to sign an agency contract or we’re not going to give you the books.”

Yes, the customer pays a little more, but that's what you want anyway — if you're running a conspiracy to eliminate market competition via illegal price-fixing agreements, that is indeed exactly what you want.

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Key finding (from page 120, citation omitted):

In sum, the Plaintiffs have shown not just by a preponderance of the evidence, but through compelling direct and circumstantial evidence that Apple participated in and facilitated a horizontal price-fixing conspiracy. As a result, they have proven a per se violation of the Sherman Act. If it were necessary to analyze this evidence under the rule of reason, however, the Plaintiffs would also prevail.

That's a "belt and suspenders" finding: Judge Cote thinks (and I agree) that this is a "per se" case because of the type of conspiracies and restraints involved and where the players all were in the various supply chains. But she's also saying that even if she's wrong about that point, and even if Apple gets the benefit of the more flexible "rule of reason" standard instead of the "per se" standard, Apple would still lose.

That makes it much harder for Apple to win on appeal.

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This is just a methodical thrashing. In every appeal, the first thing the appellate judges (and their law clerks) read is the district judge's opinion. After reading this one, I think almost any appellate judge is going to be favorably impressed with its comprehensiveness and clarity. It's the kind of opinion after which you exhale and say, "Whew! That's going to be hard to fault in any significant way."

Apple is going to have a very tough row to hoe on appeal. I think they're well and truly hosed in this case, although it's not likely to threaten their existence as a company or even delay the next iPhone-whatever.

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Footnote 63 (at p. 135) is quite droll, as antitrust humor goes:

Apple uses the term 'competitive' to convey that it wanted its prices to be the lowest in the marketplace, not to convey that it wanted prices arrived at through the process of competition.

That means: "We want all the business, but at a higher, fixed price."

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In footnote 66 on p. 143, Judge Cote labels individual Apple and Publisher Defendant executives as "noteworthy for their lack of credibility" — which I would paraphrase as meaning they're "liars lying under oath and they can't be believed."

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Okay, finished. The last 30+ pages are devoted to anticipating every argument Apple can be expected to make on appeal and methodically rebutting or undercutting each of them. Judge Cote is a Clinton appointee who's senior status, so she has a lot of experience; and she's clearly learned how to write opinions in a way that make them particularly hard to reverse. The smartest and best federal district judges are usually the best advocates for why their own written decisions ought be upheld — they try to anticipate how the appeal is likely to proceed, and to make their decisions as nearly "bulletproof on appeal" as possible (which is to say, clear, well-reasoned, and correct). And this may be a candidate for the Second Circuit to "affirm on the basis of the district court's opinion" — basically the appellate court, instead of writing its own opinion, just saying, "Yeah, what she said." It's a very high compliment to a district judge when that happens in an important case.

Posted by Beldar at 08:47 PM in Books, Budget/economics, Law (2013), Mainstream Media, SCOTUS & federal courts, Technology/products, Texas | Permalink | Comments (49) | TrackBack (0)

Monday, June 24, 2013

Beldar's instant analysis of today's SCOTUS ruling in Fisher v. University of Texas

You will see lots of press today about the United States Supreme Court's decision this morning in Fisher v. University of Texas at Austin, which was widely anticipated to be the biggest development in affirmative action law since Grutter v. Bollinger and Gratz v. Bollinger, the University of Michigan cases from 2003.

A lot of that press commentary will be wrong, and quite a bit of it will be both wrong and biased.

I therefore submit to you this quote, which comes not from the majority opinion itself, but from the official court syllabus. It's dense stuff, but those of my readers with legal training can figure out exactly what happened just from this paragraph-plus-one-sentence (citations omitted):

... The [federal appellate courts] must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.

Rather than perform this searching examination, the Fifth Circuit held petitioner could challenge only whether the University’s decision to use race as an admissions factor “was made in good faith.” It presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption. It thus undertook the narrow tailoring requirement with a “degree of deference” to the school. These expressions of the controlling standard are at odds with Grutter [v. Bolliger]’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’” Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice, yet that is what the District Court and Fifth Circuit did here. The [Supreme] Court vacates the Fifth Circuit’s judgment. But fairness to the litigants and the courts that heard the case requires that it be remanded [i.e., sent back to the lower courts] so that the admissions process can be considered and judged under a correct analysis. In determining whether summary judgment in the University’s favor was appropriate, the Fifth Circuit must assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

For those of you who lack legal training, I will now give you my hipshot reaction. Others will and do disagree, and your mileage may vary. (Mixed metaphor warning! Beware!)

This is, in both form and substance, a loss for the University of Texas in this case, and for those who support race-based preferences more generally. But it is a mostly-procedural loss, not a blockbuster opinion. It is a signal of things to come, but not an earthquake.

Instead of announcing some big new substantive rule that will turn all affirmative action law on its head, the majority chose to emphasize the way the ballgame was supposed to be refereed by the district and circuit courts. My rough paraphrase: "You ignored the rules we told you about before, so go back and do it the right way, paying attention to those rules and leaving tracks showing you did so." And that's very, very different from saying, "We're changing all the rules!"

And the majority's choice to play small-ball rather than swing for the fences is also probably why it's a seven/one decision, with only Justice Ginsburg dissenting (very briefly and somewhat mildly). I seriously doubt we'd have seen Justices Breyer and Sotomayor going along with a more substantive and sweeping ruling.

My hunch is that this limited-scope decision is largely Chief Justice Roberts' doing, part of a deliberate strategy being played out over years and, indeed, presidencies. The narrower, more procedural ruling certainly was likely to have been more useful in keeping Justice Kennedy aligned with the Chief and Justices Scalia, Thomas, and Alito; or, stated the other way, Justice Kennedy might have been more likely to bolt if the other conservatives all wanted to go the route recommended by Justice Thomas (overruling Grutter outright).

But my guess — utter speculation, mind you — is that the Chief was content to use this case as an intermediate step, a signal of a greater SCOTUS skepticism about racial preferences, but something that still measures pretty far down on the jurisprudential Richter scale.

Note well that Justice Kagan's recusal turns into a non-event with the 7/1 margin. By assigning this opinion to Justice Kennedy to write (even with a narrower, more procedural ruling), the Chief has pulled Justice Kennedy a bit farther into the conservative camp on this particular issue. And if the next case breaks back down into a more traditional and predictable 5/4 split (with Justice Kagan joining Justices Ginsburg, Breyer, and Sotomayor in upholding racial preferences), there will nevertheless be a clear, single majority opinion with strong precedential value (at least relative to the kind of split decision mess we've so often seen on these cases, Bakke being the poster child for SCOTUS dysfunction).

Posted by Beldar at 10:26 AM in Law (2013), SCOTUS & federal courts | Permalink | Comments (6) | TrackBack (0)

Saturday, December 29, 2012

Re David Gregory's deliberate breaking and unwitting mockery of a dimwitted law

My blogospheric friend Patrick Frey — a/k/a Patterico in the blogosphere, but by day a senior felony prosecutor for some of the most violent and gang-ridden parts of Los Angeles — posits an interesting question: "Should David Gregory be prosecuted?" (The background to and context for this inquiry is concisely explained there, so I won't repeat that here.) Frey's commenters, from across the political spectrum (including some articulate leftie opinions too), offer some interesting comparisons, ask some provocative follow-up questions, and make some excellent points.

I reprint here (slightly edited for clarity, but without block quotes) my own pair of comments there:

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114. Because of his defiant mockery of the law, he should be prosecuted.

Because the law is ridiculous, his sentence (fine and jail time) should be suspended. But he deserves to have the conviction on his record, forever.

*******

170. In my comment above (#114 — 12/28/2012 @ 1:06 pm), I opined that David Gregory “should be prosecuted[, but that b]ecause the law is ridiculous, his sentence should be suspended.” I frankly was assuming he’d plead guilty in exchange for the suspended sentence, and I’m still confident that would be the likely outcome if he were prosecuted (which he won’t be).

But in my assumptions, I was skipping a possible step: the trial.

And frankly, despite my utter and complete lack of regard or sympathy for Mr. Gregory, I’d be almost equally happy either to see the jury hang or to see him acquitted outright as to see him convicted (and his sentence suspended), because:

On these facts, an acquittal could only happen through an act of collective and willful civil disobedience by the jurors — “jury nullification,” which the judge's instructions would likely forbid the jurors to do, but which the judge could do nothing to correct if it happened. It would be useful for a Washington, D.C., jury to produce such a vivid data point on the practical unenforceability of such laws even when they are violated on national television; and

A hung jury, or better, a series of hung juries, demonstrates the same point, but with the Kafkaesque but karmically appropriate wrinkle that Gregory is re-subjected to trial again and again.

What we are talking about here is not just the way laws are applied, but the way they are seen to be applied. The latter is as essential to an ordered society under the Rule of Law as the former. It corrodes the Rule of Law to punish Gregory for this indisputable and indisputably silly crime. But the Rule of Law is likewise corroded if we selectively pretend that this law doesn’t exist, or if we pretend that David Gregory didn’t break it.

That’s why he should be prosecuted, regardless of the outcome. The worst of all worlds is having a law like this on the books but having it enforced (or threatened to be enforced) arbitrarily.

Posted by Beldar at 08:50 AM in Current Affairs, Law (2012), Politics (2012) | Permalink | Comments (3) | TrackBack (0)

Friday, October 26, 2012

Speculations on the Benghazi terrorist attack's impact on the election

Most American presidential elections turn on domestic policy and issues, not foreign policy or war. Rare exceptions have included 1864, 1916, 1940 & 1944, arguably 1968, and 2004.

I do not believe that the Obama Administration's bizarre and sorry handling of the Benghazi terrorist attacks that killed Amb. Chris Stevens and three other fine Americans will overshadow domestic issues in the upcoming election. This election is still going to be mostly about the economy for most people, and it should be.

But short of that, I think the Benghazi story is still having a serious impact on the election. I know a lot of good Americans who voted joyously for Obama in 2008, and whose second thoughts and sober reappraisals since have diluted a lot of their zeal. Some of them still have open minds enough to have realized — especially during the three presidential debates — that the synchronized media and Obama-Biden portrayals of Mitt Romney as some sort of scary boogeyman were always detached from reality. Obama basically decided to campaign against Mild Mitt as Lyndon Johnson campaigned against Barry Goldwater in 1964 and Jimmy Carter campaigned against Ronald Reagan in 1980. But when the other 80% of America who only pays attention during the last six weeks before Election Day opened their eyes, they suddenly realized why hard-core movement conservatives have never mistaken Mitt Romney for Barry Goldwater or Ronald Reagan!

Yet many of those voters still held onto considerable residual fondness for President Obama. They sympathized with him. They felt like they could share and appreciate his own frustration with just how hard his job turned out to be. Many of them were disappointed by what they perceived as his sell-outs — Gitmo's still open, we've still got troops in combat overseas, Drones R Us, etc. But they could mostly forgive Obama for that, and they still believed he was basically a good and honest and competent man who'd never put his political ambition ahead of what's noble and good.

It's just damned hard for anyone to square that with this slow-motion horror show. Just about every corner of the Administration's preferred narrative has completely unraveled; nothing's been repaired; on this entire subject, the Obama Administration is entirely in confused and reeling tatters.

I think it could cost President Obama a fair number of votes outright, but I think it's going to have a much more serious impact on Democratic turn-out.

Even those who still love him can't miss the fact that he's getting smaller every day. Even if they still like him, they just can't continue to pretend that he's earned their vote for a second term. They might very well not be able to bring themselves to vote for Romney. But they are already reconciling themselves to the possibility of staying home, or procrastinating until the polls are closed, or whatever else they need to do to preempt any last guilty sentiments.

I could be completely wrong about this. It's just my hunch. I'm even reckless enough to try a medical analogy, which any lawyer should know better than: This Libya business seems to me like an occult ruptured spleen, one that doesn't present with the usual signs and symptoms that would signal the docs that the patient needs urgent surgery, one that may come on seemingly spontaneously many hours or even days after the original trauma. One minute the patient looks pretty normal and alert, maybe just a bit pale; and the next, they've bled out internally and they're dead.

Posted by Beldar at 10:22 PM in 2012 Election, Budget/economics, Global War on Terror, Obama, Politics (2012), Romney | Permalink | Comments (1) | TrackBack (0)

Obama hams for the cameras when required to show voter ID in Chicago today: Was it pursuant to a law he voted for?

It has been some time since I've had occasion to link to any of Josh Marshall's Talking Points Memo websites, but tonight I'll make an exception for this post from TPM's Ryan J. Reilly and its embedded video of President Obama casting an in-person early voting ballot in his home state of Illinois.

If you'd prefer, you can also see the same video here as embedded at NRO, or here directly from MSNBC, but I'm choosing to link TPM because I'm going to quote from its accurate but still eyebrow-raising explanation of why the President of the United States had to pull out photo identification in order to vote in Illinois:

Despite his personal stance against voter ID laws, President Barack Obama was asked to show a form of photo identification when he voted in Chicago on Thursday. While Illinois does not have a voter ID law, the state does require voters who take advantage of early voting to show a driver’s license, a state-issued identification card or government-issued photo ID.

"Voters don't need reasons or excuses to use Early Voting — but voters do need to present government-issued photo identification to use Early Voting," according to the Chicago Board of Election Commissioners.

I'm not licensed to practice law in Illinois and I lack the resources to do in-depth research into its statutes and, especially, their legislative history. But my very quick search of the Illinois election code suggests to me that this may be the provision in the Illinois early-voting statutes that obliged the election worker to ask for Obama's photo ID (italics mine):

(b) In conducting early voting under this Article, the election judge or official is required to verify the signature of the early voter by comparison with the signature on the official registration card, and the judge or official must verify (i) the identity of the applicant, (ii) that the applicant is a registered voter, (iii) the precinct in which the applicant is registered, and (iv) the proper ballots of the political subdivision in which the applicant resides and is entitled to vote before providing an early ballot to the applicant. The applicant's identity must be verified by the applicant's presentation of an Illinois driver's license, a non‑driver identification card issued by the Illinois Secretary of State, or another government‑issued identification document containing the applicant's photograph. The election judge or official must verify the applicant's registration from the most recent poll list provided by the election authority, and if the applicant is not listed on that poll list, by telephoning the office of the election authority.

Alternatively, it's possible that since Obama is residing out-of-state but performing government service, his vote is treated as an absentee ballot, even if cast in person while temporarily back in Chicago. If so, then this may be the relevant language covering in-person early voting before election day by someone who's entitled to vote absentee under Illinois law (italics mine):

In conducting in‑person absentee voting under this Section, the respective clerks shall be required to verify the signature of the absentee voter by comparison with the signature on the official registration record card. The clerk also shall reasonably ascertain the identity of such applicant, shall verify that each such applicant is a registered voter, and shall verify the precinct in which he or she is registered and the proper ballots of the political subdivisions in which the applicant resides and is entitled to vote, prior to providing any absentee ballot to such applicant. The clerk shall verify the applicant's registration and from the most recent poll list provided by the county clerk, and if the applicant is not listed on that poll list then by telephoning the office of the county clerk.

Regardless of which of these statutes was the basis for it, then, I have no reason to doubt Mr. Reilly's source's explanation.

*********

What I am mildly curious about, however, is whether as a state senator, Barack Obama might have actually voted to pass the voter ID law that required him to show his photo ID to vote today. At the very end of the section of the Illinois statute regarding in-person casting of absentee ballots, we see this:

(Source: P.A. 93‑574, eff. 8‑21‑03; 94‑645, eff. 8‑22‑05; 94‑1000, eff. 7‑3‑06.)

And at the end of the more detailed and explicit section on early voting generally, we see this:

(Source: P.A. 94‑645, eff. 8‑22‑05; 94‑1000, eff. 7‑3‑06; 95‑699, eff. 11‑9‑07.)

My educated guess is that these are references to the legislative history of these sections, as originally passed and as subsequently modified. It would appear that the section containing the in-person absentee voting ID requirement was first passed to be effective in August of 2003, which in turn suggests that the statute was likely enacted earlier in 2003 or perhaps in 2002 — i.e., while Obama was in the Illinois senate. And it would appear that the far more detailed voter ID requirement for in-person early voting was originally passed to be effective in August 2005; depending on how long the notification gap was between passage and effective date, that statute might or might not have been passed before Obama resigned from the Illinois senate to take his seat in the U.S. Senate after the November 2004 elections.

I'm going to make a further inferential leap to posit that (1) since the Democratic Party has long dominated the Illinois legislature, such that no important legislation could be passed if the state Democratic leadership opposed it, and (2) as a state senator Obama was generally very reliable in voting in the fashion recommended by the state Democratic leadership, then (3) Barack Obama may very well have voted for the original version of the absentee in-person statute, and possibly may have voted for the original version of the early voting statute. Of course, Obama was also famous for voting "present" and for missing votes as a state senator, so my inferential leap is across a decent-sized chasm.

Obama_photo_IDI can't quite take the last jump, though, that would be necessary to make this truly more than a wild goose chase, not even as a rational inference: Both sections have been amended after Obama left for Washington, but I don't know the details of the amendments. So the italicized language in the quotes above — which represent the law currently in effect — may or may not correspond to their original versions. But that's exactly the kind of legislative history research project that any Illinois lawyer, or indeed even any eager-beaver first-year law student at any Illinois-based law school, would have the resources to undertake fairly easily, if sufficient enthusiasm could be found for it. Maybe one of my readers knows a guy who knows a gal who hung a shingle a few years ago in Urbana, and maybe he or she will volunteer some definitive answers to my questions.

*********

In any event, I was mildly amused by Mr. Mr. Reilly's concluding paragraph, in which he notes without further comment that the Obama Administration "has opposed voter ID laws in Texas and South Carolina but approved of less-stringent voter ID laws in Virginia and New Hampshire." Nevertheless, for passing laws which would oblige Texas or South Carolina general election voters to do exactly that which Barack Obama himself had to do today to vote in person in Illinois, the Obama Administration has used the federal courts to block the considered legislative judgments of the Texas and South Carolina state legislatures, their governors, and the citizens of those states whom those duly elected state officials represent.

See, if what happened today to President Obama in Chicago were permitted to happen in Texas or South Carolina, that could only be because the citizens of Texas and South Carolina, their legislators, and their governors are fixated on discriminating against non-whites, doncha know? But in Illinois, it's all grins and giggles and a presidential photo op.

Posted by Beldar at 01:08 AM in 2012 Election, Law (2012), Obama, Politics (2012), Texas | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 24, 2012

Does Obama-Biden have an edge in the GOTV ground game?

I would like all of my friends who are Democrats to read this very optimistic assessment of the relative quality of the two parties' get-out-the-vote "ground games" by a staff writer for the reliably left-leaning The Atlantic. (Hat-tip Avik Roy at The Corner.)

Seriously, I'd especially like for all my Dem friends in places like Ohio, Pennsylvania, Colorado, Wisconsin, Nevada, Michigan, New Hampshire, Virginia, North Carolina, Florida, and Iowa to read this very optimistic assessment. Treat it as authoritative. Consider its devastating logic and credibility as you cope with the many demands on your time in the next couple of weeks. Any good progressive can and should rely on The Atlantic, so you can be absolutely certain that with or without your vote, Obama's got this in the bag. Oh, sure, you could schlep down to the polls and engage in a bit of symbolic ritual, but really, what's going to more directly affect your real-world quality of life and the lives of those you love — some symbolism, or a really good, long, guilt-free nap?

My main question after reading this is: If the Obama campaign is actually this smart and effective, why is unemployment still above 8% and the deficit above $16T?

Also, if the Romney campaign is as clueless as it appears to be from this article, how did he ever manage to pull off that Olympics thing or make all that money?

These questions ought not trouble my Democratic friends, though. Yes, those are the droids you were looking for.

Posted by Beldar at 07:12 PM in 2012 Election, Humor, Obama, Politics (2012), Romney | Permalink | Comments (4) | TrackBack (0)

Tuesday, October 23, 2012

Say no to Trump

Donald Trump is a manufactured celebrity, a publicity whore unfit to shine the shoes of thousands of genuine business people I've had the pleasure of meeting and working with in my 30-plus years as a lawyer. I will not contribute to his cause by linking any of the various sources that are popping up regarding rumors of some "revelation" that Trump may or may not be planning on making now, on the brink of the election.

I will repeat, however, something I've said here and elsewhere repeatedly: Michelle Obama and I probably would never be close friends, but not a single one of my arguments as to why Barack Obama should lose this election has anything to do with her. When it comes to finding grounds to find fault with her husband, we are in a target-rich environment, friends and neighbors. But:

There is simply no net political upside for anyone who opposes Barack Obama's reelection in doing anything that will be perceived, rightly or wrongly, as an attack on the First Lady, or an intrusion into the Obamas' marriage and family that has no close relationship to anything Pres. Obama has done or might do as President.

There is, by vivid contrast, an obvious and enormous potential for blowback and backlash. So anyone who does that — including Donald the Ridiculous — is acting entirely on his own behalf, not on behalf of Mitt Romney or the GOP or conservatives (even the most traditional social conservatives).

Posted by Beldar at 08:34 PM in 2012 Election, Obama, Politics (2012), Romney | Permalink | Comments (2) | TrackBack (0)

Monday, October 22, 2012

Leading from behind meant sending USN's carrier strike forces far from Libyan shores

If you're looking for cultural trivia clues to help you deduce how long the United States Navy and Marine Corps have been projecting power from the Mediterranean Sea — and very specifically, into what's now Libya — consider that the very first phrase of the Marines' Hymn refers to them fighting our country's battles all the way to "the shores of Tripoli." The Commander in Chief who dispatched those Marines there aboard warships of the U.S. Navy? That would be Thomas Jefferson. And the referenced action on those shores of Tripoli, the Battle of Derne in 1804, was the "first recorded land battle of the United States on foreign soil after the American Revolutionary War."

The U.S. Navy and the Marines it transports have been actively protecting American interests in the Mediterranean, and specifically in what's now Libya, for almost as long as those military services have existed. After Operation Torch and the successful North Africa landings during World War Two, the U.S. Navy gradually took over military dominance of the entire Mediterranean from the British. Throughout the entire Cold War, the Mediterranean was, in military terms, an American lake, actively patrolled at almost all times by at least one U.S. Navy carrier group. Those whose memories reach back to 1986 will remember Ronald Reagan deliberately flaunting Mumar Kadafi's cosmically silly Line of Death in the Gulf of Sidra to reassert and reestablish, in the only way meaningful, Freedom of the High Seas.

Does anyone doubt that if Ronald Reagan were alive and serving as POTUS during the "Arab spring," during the change in government of our economic and military client Egypt, during the civil unrest and rebellion in Syria, and during the ouster and killing of that same clown Kadafi, he would have done at least as much for the security of American assets in the Mediterranean area as the U.S. had done throughout the four-plus decades of the Cold War? Does anyone doubt that Ronald Reagan would have had a carrier strike group within overwatch and reaction distance before sending a U.S. Ambassador directly into harm's way in Libya on the anniversary of al Qaeda's greatest triumph?

We have eleven carrier strike groups. As best I can tell, on September 11, 2012, five of them were deployed: Three (Washington, Nimitz, and Stennis) were at sea in the Pacific, and two (Enterprise and Eisenhower) were at sea somewhere in the Fifth Fleet Area of Responsibility, which comprises the Persian Gulf, the Red Sea, and the Arabian Sea. Not until its passage through the Suez Canal on October 15, 2012, did the Enterprise carrier strike group finally enter the Sixth Fleet AOR, which includes the Mediterranean Sea.

Ponder that. Then read this set of blunt questions and observations by military writer, former Assistant Secretary of Defense, and USMC infantry officer (ret.) Bing West. Colonel West makes it clear that even with no carrier strike groups in range, President Obama had other military assets that could, and clearly ought, to have been employed. But carrier groups are also intended to deter as well as to respond. So how could it have failed to make a difference if a carrier strike group had been within rescue and response range during the many deadly hours of the Benghazi terrorist attack?

Posted by Beldar at 02:09 AM in 2012 Election, Foreign Policy, Global War on Terror, Obama, Politics (2012) | Permalink | Comments (1) | TrackBack (0)

Sunday, October 21, 2012

Obama renews his acquaintance with the Rev. Jeremiah Wright

Was your last vote for Barack Obama based in any part upon the careful reassurances he gave the American public in April 2008 when he threw his longtime Chicago pastor and spiritual mentor — the Rev. Jeremiah "God DAMN America" Wright — under the proverbial campaign bus?

If so, this six-second snippet from a Looney Tunes classic exactly illustrates what President Obama has just done to you:

Recall that Rev. Wright and Barack Obama were joined at the hip for two decades in Chicago. In his sermons, Rev. Wright actually originated the phrase that became the title of Obama's second book, "The Audacity of Hope." But when even the mainstream media finally began to focus on what Obama himself conceded were "some inflammatory and appalling remarks [Rev. Wright had] made about our country, our politics, and [Obama's] political opponents" during the 2008 presidential campaign, candidate Obama was obliged to assure the public in writing and on television that he "vehemently disagree[d] and strongly condemn[ed] the statements that have been the subject of this controversy." And candidate Obama didn't just denounce Rev. Wright's inflammatory statements, but also "the person" who'd made them (boldface mine):

I have been a member of [Rev. Wright's] Trinity United Church of Christ since 1992, and I've known Reverend Wright for almost 20 years. The person that I saw yesterday was not the person that I met 20 years ago.

Indeed, Barack and Michelle Obama very publicly left Trinity only a few weeks later, in June 2008, and they unequivocally identified their split with Rev. Wright as the explanation:

Barack Obama announced Saturday that he and his wife had resigned as members of their Chicago church in the wake of controversial remarks from its pulpit that have become a serious distraction to his presidential campaign.

In a letter dated Friday to the pastor, the Rev. Otis Moss III, Obama said he and his wife, Michelle, had come to the decision "with some sadness." But they said their relations with Trinity United Church of Christ "had been strained by the divisive statements" of the retiring pastor, the Rev. Jeremiah A. Wright Jr., "which sharply conflict with our own views."

The Illinois senator's decision to break with the church that he has credited with shaping his faith came after months of controversy over racially charged remarks Wright made to the 8,000-member congregation on Chicago's South Side.

And Team Obama has been careful to avoid any public ties to Rev. Wright ever since.

Until now, as let slip — doubtless to the intense chagrin of the Obama-Biden campaign — deep within a San Francisco Chronicle op-ed by the venerable and pernicious Willie Brown, former Democratic mayor of San Francisco and speaker of the California State Assembly (boldface mine; hat-tip Ed Driscoll guest-blogging at Instapundit):

By my estimate, you have to build in a three- to five-point slip from the poll numbers for any black candidate on election day. To overcome the slip, you need to pump up the black vote by equal measure.

And that's not easy, because brothers and sisters aren't among the top turnout groups.

In 2008, Barack Obama was able to compensate for the slip and then some. You would have thought it was Nelson Mandela coming out of jail. This time it's not going to be that easy.

If Obama looks as if he's going black, he could turn off white people. So he's largely been lying low on the race issues — visibly pushing for the Latino vote, the gay vote, the women's vote, but not the black vote.

But last weekend, he held a conference call with a collection of black preachers that included his old pastor, Jeremiah Wright. He wanted to talk to them about getting out the vote.

Mayor Brown didn't volunteer any further details about Rev. Wright's participation in the conference call. But you know someone on the conference call made a recording.

screencap of Rev. Jeremiah Wright praying for God to damn America from the pulpit of the Trinity United Church of Christ, as circulated before Obama threw Wright under the bus in 2008Once upon a time, some eager Woodward-and-Bernstein wannabe would actually be beating the bushes, working Democratic fundraising sources, trying to get a copy to make public, and dreaming of Pulitzers to be earned through a thorough investigation into this sort of stealth about-face conducted by a sitting President seeking reelection.

But those days are gone, and the "cleaners" from Team Obama's rapid response team doubtless began their scrubbing, shredding, and stonewall-building just as soon as they had conducted a mild but vivid session of political reeducation with Mayor Brown. Perhaps tomorrow Mayor Brown will extend and revise his op-ed to clarify that the voice of Jeremiah Wright he heard on that GOTV conference call was somehow also not the same man Barack Obama met twenty-plus years ago.

Posted by Beldar at 07:17 PM in 2008 Election, 2012 Election, Mainstream Media, Obama, Politics (2012), Religion | Permalink | Comments (2) | TrackBack (0)

Wednesday, October 17, 2012

Beldar on the second Obama-Romney debate

I intend to mix metaphors with enthusiasm in this post, but that's the only enthusiasm you'll find in it if you're a fellow conservative.

Nobody made a Ford/Poland-size gaffe last night. There are those who argue that in the biggest picture, against an incumbent President, a challenger "wins" merely by holding his own, fighting to an approximate draw, because burnishing his "potentially presidential" image is more important than who made better arguments. I'm not entirely convinced of that, but in any event it begs the question of who got the better of whom in any particular debate. In my judgment, last night President Obama got the better of Gov. Romney by a nontrivial margin.

Of course the moderating was pathetically biased. Conservatives continue to find this surprising in exactly the same fashion that Charlie Brown continues to be surprised when Lucy snatches the football away just before he can kick it, causing him to flip over and land on his head. I stopped laughing when Charlie Brown does this sometime back in the 1970s. Lucy will keep yanking the ball away, though, until Charlie Brown withdraws his cooperation from the exercise, and so too the Democrats and the Debates Commission will keep foisting these mainstream media moderators onto us and the American public until we withdraw ours.

Single most important result:

President Obama generally succeeded in reversing the impression of disengagement and lassitude he'd generated in even his own partisans during his first appearance against Romney. And he did so without, for the most part, going nearly so over the top in his disrespect or smirking as Biden had. This was not a particularly high bar — the silver lining to what was perceived as Obama's disastrous first performance was that it certainly lowered expectations for his subsequent ones! — but he cauterized the wounds in the Democratic base's self-confidence that Biden had merely bandaged. Had Obama failed to clear this low bar, the race would have ended last night because the wounds from the first debate on the Dems' GOTV/turn-out efforts would have turned out to be definitively mortal. They may still turn out to be; but for now, the patient has been stabilized.

*******

Like every news-following conservative who watched the debate, I am thoroughly mystified, and more than just a little disappointed, by Gov. Romney's unpreparedness on the subject of Ambassador Chris Stevens' assassination. For the last several days, the President's proxies have been pointing to the "no acts of terror" phrase in his Rose Garden remarks on the day after the attack. They've used that phrase as their exclusive justification for the claim that the Administration was not completely and unequivocally devoted to the dishonest "it was all about the YouTube video" excuse that was otherwise the entire focus of Obama's remarks that day, and that the Administration shamefully and dishonestly continued to peddle through U.N. Ambassador Rice and others for more than a week thereafter. Was Romney genuinely surprised when Obama used that phrase to defend himself in the debate? I think he was feigning surprise as part of an effort to set and spring a trap. But his effort was so bungled that he ended up looking merely badly informed himself — and thus the trap effectively closed on Romney instead of on Obama. An adequately skillful set-up would have anticipated that Obama would have nothing but that phrase to rely upon, and would therefore have acknowledged that single phrase, but gone on — before Obama had a chance to use it again — to explain why it's not a credible excuse.

Even TIME's Mark Thompson calls Team Obama's reliance on that single "no acts of terror" phrase a "[p]retty weak reed," and says of Obama's word games (italics his) that "in Tuesday night's second presidential debate, we also learned that President Obama isn’t beyond twisting what he said then [in his Rose Garden remarks] to make him sound better now." Weak or even twisted reed that it may have been, however, Romney permitted Obama (with an assist from the moderator) to thrash him about the head and shoulders with it on national television. In basketball terms, just as Romney was about to shoot, he bobbled the ball into Obama's hands, and then Obama got away with traveling on a fast-break and scored an uncontested three-pointer after the ref set a pick for him. But it still goes into the record books as an unforced error by Romney that destroyed a scoring opportunity and gave up a score to his opponent.

I also thought Gov. Romney missed another opportunity in his closing. Obama hadn't yet hit him hard on the "47 percent" gaffe. But both Romney and Obama knew that Obama would get to speak last. So Romney absolutely, positively knew when he gave his closing two minutes that an attack based on this gaffe would be coming, and that he (Romney) wouldn't have any further chance last night to rebut it. Romney did try to indirectly anticipate Obama's attack by insisting that he "cares about 100 percent of the American people," and that he wants "100 percent of the American people to have a bright and prosperous future." But this had become the ideal opportunity to make his most public and most specific disavowal of, and apology for, the gaffe. And had he done so, he might have effectively "pulled the teeth" from the gaffe himself before Obama could use them to bite Romney.

Since Romney didn't specifically and preemptively disavow the gaffe, however, when it came Obama's turn to close, then sure enough, instead of having had his planned sound-bite disrupted by a Romney spoiling attack, Obama was able to land the exact lines he'd pre-planned — and he still got good mileage from them.

*******

So as far as the debates considered in isolation go, I score the series at two games to one, with one left to play. Certainly both candidates must avoid any Ford/Poland-magnitude gaffes at the last one. I still think unlikely any scenario in which the debates are going to turn out in a way that helps the Obama-Biden ticket overall on a net basis. And the Obama partisans' original fantasy — that Obama would dominate Romney as thoroughly in these debates as he had John McCain — isn't going to be resurrected, so at this point I think they'd be quite happy to salvage a two-to-two overall tie.

Posted by Beldar at 09:18 AM in 2012 Election, Obama, Politics (2012), Romney | Permalink | Comments (6) | TrackBack (0)

Thursday, October 11, 2012

Beldar on the Ryan-Biden Veep debate

I'll give you even odds on whether the doctor who last adjusted Slow Joe's meds will be thrown under the Obama bus by Monday.

I started seriously touting Paul Ryan as the best potential GOP presidential nominee back on May 17, 2011; toward that end, I created a "Draft Paul Ryan" sidebar graphic on May 26, 2011. Every significant event since then, culminating in tonight's debate, has left me more convinced that he would be the best available person to undertake the world's most difficult job. But I will now settle with reasonable contentment for Ryan being the proverbial heartbeat away, and will cast my vote accordingly.

Strategically, big picture:

Biden over-reached, undoubtedly under prompting by Axelrod and the Chicago gang. He was not much more incoherent than normal, which is to say that when the Democratic talking heads who can still speak in sentences and paragraphs re-interpret and translate his remarks, they'll be able to pretend there's at least a kernel of reality associated with most of Biden's vocal shrapnel. I don't think he made the kind of gaffe that he's famous for; but he was never famous for making gaffes at debates. But instead, his bizarre behavior opened (or reopened) the most basic questions about his own temperament and competence. And it's much harder to spin bizarre behavior than sloppy factual assertions. There's nothing any talking head can ever say or write that could transform Joe Biden's performance tonight into anything remotely "presidential."

Biden put his own fitness as a potential presidential successor into issue. Ryan ended any remaining doubts about his. Therefore: GOP leads the series two to zero with two yet to play.

I think it's still a very close question whether the American electorate prefers the Obama-Biden ticket to the Romney-Ryan ticket. But only the most blind and stubborn of partisans — and I concede there are many such — can still pretend that anyone in America is anything but terrified of the words "President Biden."

------------

UPDATE (Thu Oct 11 @ 10:45pm): By way of concluding postscript, from memory and without benefit of replay or transcript:

Ryan mentioned John F. Kennedy's tax cuts in 1961 and the resulting economic growth. Biden interrupted with what seemed to me to be a half-formed taunt along the lines of, "So now you're claiming to be Jack Kennedy?" I say "half-formed," because it was an allusion to, but without an explicit naming of, Lloyd Bentsen's devastating "Jack Kennedy was my friend, Senator, and you're no Jack Kennedy" put-down of Dan Quayle in their 1992 debate.

Ryan caught the reference and smiled, but tried to continue with his answer rather than responding to the taunt or following up on the allusion. And modesty forbade Ryan from doing the latter, I think.

But my immediate reaction was that Biden's instincts had caught him this once, and saved him from a possible disaster: He was wise to bite back the full taunt.

You see, unlike Lloyd Bentsen, Biden did not know Jack Kennedy personally or serve with him in the U.S. Navy. But if Biden had tried to say, out loud and in so many words, "Congressman, you're no Jack Kennedy," then I think that most of those Americans who can actually remember Jack Kennedy — those who can remember how articulate and poised and self-confident and self-deprecating Kennedy was at his best, and who can remember, more than anything else, his youthful vigor (or "VIG-gah" as they said at Hyannisport) — would have said to themselves, "Well, actually, Paul Ryan does remind me of Jack Kennedy!" It was best for Biden for his allusion to go unremarked and uncompleted, in other words, because it would have blown up in his face.

(As did Biden's first attempt to throw Romney's "47% gaffe" in Ryan's face. Ryan was obviously prepared, and his responsive sound-bite will be one of the most quoted and replayed lines from the debate. To all those who thought Obama was foolish not to have confronted Romney on that particular point during the first debate, I've always thought: Do you think Romney didn't have a super-polished focus-grouped response prepared for that? Do you think anything could please Romney more than having a chance to re-deliver and improve upon, during the debate itself, the walk-back he'd already been trying to get the press to cover? That was a deliberate choice on Obama's part, and in fact a wise one in context.)

I think, and certainly hope, that we saw the effective end of one long political career tonight, and the full unveiling of another whose potential is deep and vasty.

Posted by Beldar at 10:28 PM in 2012 Election, Obama, Politics (2012), Romney, Ryan | Permalink | Comments (8) | TrackBack (0)

Tuesday, October 09, 2012

On the demise of Dewey & LeBouff

This Wall Street Journal report, reporting on the settlement of debt litigation against ex-partners of the bankrupt New York law firm Dewey & LeBoeuf LLP, may generate considerable schadenfreude among those who dislike lawyers in general or NYC-based BigLaw firms in particular.

It made me remember a clear fall day in 1979, however, on my very first trip to New York City. I've previously written about other adventures on that same trip in a 2004 post featuring Dick Cheney, John Edwards, the Plaza Hotel, and supermodel Cheryl Tiegs.

Earlier in the day I described in that post, I'd had my first "fly-back interview" with the NYC firms with whom I'd interviewed some weeks before on campus at UT-Law. The morning interview was with what was then called "Dewey, Ballantine, Bushby, Palmer & Wood." The first name partner, former NY governor and two-time GOP presidential nominee Thomas E. Dewey, had died early in that decade. But my first interview of the morning was, as I recall, with name partner Wood — whose Christian name I am embarrassed to admit that I cannot recall, perhaps since it never occurred to me that I'd ever have occasion to address him by it.

Altogether contrary to my confident expectations, however, and notwithstanding the many decades' gap in our respective ages (I was all of 21), Mr. Wood actually might not have minded at all if I'd called him by his first name. He was among the most comprehensively charming gentlemen I've ever met in my life, and he put me instantly at ease — I don't remember how, so I can't rule out the possibility that hypnosis was involved, but it was entirely effortless and instinctual on his part.

Not far into our interview, he said this: "So, Bill, how big a chip did you carry up from Texas on your shoulder?" And he winked. Somehow I knew he wasn't voicing a criticism, but rather an insight — and an absolutely accurate one.

I answered: "I think it may have been a pretty big chip, but I didn't expect any of my interviews here to be like this one. I'd like to clerk in New York next summer so I can compare it to what I saw last summer in Houston and Dallas, to see whether the difference would justify a permanent move here after my judicial clerkship. And so I hoped to learn about your firm's practice today. But I frankly didn't expect to be this much at ease, especially with a name partner in one of the most distinguished firms in New York."

This seems trite or smarmy as I re-read it here, but at that moment in his corner office, it was an entirely genuine statement of exactly what I was feeling: I had abandoned any expectation of trying to "manage" this interview since he seemed entirely capable of reading whatever was on my mind, so there was no point in trying to spin him.

He nodded thoughtfully. In my memory he may have fiddled with his pipe, perhaps re-tamped and re-lit it, before he continued:

"Most of this firm's partners came here from other states. The reason we're so good is not because we're in New York. Rather, we're so good precisely because we draw the best talent from everywhere. And to keep them, we've always done whatever is necessary for non-New Yorkers to be comfortable and productive here."

I was utterly convinced of his wisdom and his trustworthiness at that moment. The chip had flown from my shoulder without him or anyone having knocked it off. We were also both aware that I was aware that he was flattering me outrageously and far beyond any merit I could yet have demonstrated. But he was entirely confident in the merits of his pitch, and our mutual awareness of his outrageous flattery did not detract a whit from his style and panache in troweling it on. And as they sometimes say on the prairies of west Texas whence I hail, "If'n you got the what-for to back it up, then it ain't exactly braggin' now, is it?" Mr. Wood had a lot of what-for.

The rest of the day's interviews were pleasant enough, but none was nearly so memorable. I ended up working elsewhere in NYC that summer at one of Dewey Ballantine's archrivals. Years later, when I was at Houston's Baker Botts during the 1980s, I worked against Dewey Ballantine's mergers and acquisition lawyers on a couple of contested tender offers. (As expected, they were quite formidable, but not superhuman.) Their merger with LeBoeuff, Lamb in 2007 to become "Dewey & LeBoeuff LLP" seemed a longshot even at the time, and I don't know many of the details of the merged firm's demise, but I'm not at all convinced that its collapse is any kind of deathknell for BigLaw.

It's by no means certain that even someone as gracious and polished as Mr. Wood could have piloted their ship through the competitive storms of the last two decades. "First-world problems," my kids would probably say, and I won't lose any sleep worrying about the ex-Dewey & LeBoeuff partners having to pay "clawback" settlements. But based on nothing more than my sentimental memories of that extraordinary interview, I'm slightly sad to watch the firm so spectacularly dashed on such financial reefs. And I still count myself lucky to have met and spoken with Mr. Wood, even if the sort of law firm and law practice he symbolized and represented no longer can compete effectively on a national or international stage.

Posted by Beldar at 11:25 PM in Law (2012), Trial Lawyer War Stories | Permalink | Comments (1) | TrackBack (0)