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:
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:
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).
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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."
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."
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.
Friday, October 26, 2012
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.
I 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.
Monday, August 27, 2012
An astonishing record of achievement from the west Texas plains
My hometown of Lamesa, Texas, is special in many ways, and I'm prompted today to put aside politics and law and everything else I usually blog about to extend my warm congratulations to two long-time Lamesans for reaching an amazing pair of career milestones:
Last Friday night, the Lamesa High School Golden Tornado girls' volleyball team beat Van Horn in the Crane Tournament. It was the nine hundredth career victory for Patty and Tippy Browning, twins who've been coaching Lamesa High School girls' athletics teams for forty-five years:
The Vega natives, 900-448 through Friday, made history and have collected a lot of accolades while coaching in Class 3A and 4A before moving to Class 2A this season. The sister duo has earned 21 district championships, and a UIL Class 4A state championship in 1986 along the way.
But the Brownings were quick to divert the individual praise to, what they both said, was a more vital cast of characters.
"The 900th win isn’t the important thing," Tippy Browning said. "The important thing is the history. Without history you don’t have tradition. That tradition is what I feel got us 900 wins. It’s not our 900 wins, it’s 900 wins for the countless student-athletes that have come into our program and created that great tradition and pride."
The Brownings are ranked No. 14 on the all-time active coaching wins list according to the National Federation of State High School Associations.
Over their coaching career, the Brownings have averaged 20 wins per season, which is a level of consistency most coaches never reach.
I recall when another legendary Lamesa coach, the late and much-loved O.W. Follis, reached his 800th career win as the Golden Tors' head basketball coach; by the time he retired in 1982, he'd gathered 857 career wins. The Brownings' career win total is just as amazing a statistic, and they certainly share the same very rare company.
As amazing as such statistics are on their face, it's what they imply, the story they merely hint at, that is genuinely astonishing. But with just a moment's reflection, anyone who's ever been, or known, a high-school girl can immediately appreciate the patience, the dedication, the love of teaching and of sports, that these numbers bespeak.
Lamesa is a small town, and I live on the far side of Texas from it now. But I'm tickled that the internet and social networking lets me keep track of this kind of news, and I'm happy to extend my congratulations to Coach Browning and Coach Browning! There are a lot of Lamesa ex-pats scattered all over Texas and beyond who are very proud to help you both celebrate this accomplishment.
Thursday, August 16, 2012
Easements and beaches
I was just now skimming my email, in which I found an invitation to watch a continuing legal education program on important recent decisions of the Texas Supreme Court. One of the cases that's to be discussed is Severance v. Patterson, __ S.W.3d __, 2012 WL 1059341 (Tex. Mar. 30, 2012), whose holding the invitation describes as follows:
Private beachfront properties on Galveston Island's West Beach are not impressed with an easement that rolls or springs onto property. Never previously encumbered, although the law allows the State to prove an easement, as would anyone else.
And so help me, I couldn't stop myself from making and posting this:
Sunday, August 05, 2012
Ted Cruz on today's Fox News Sunday
I just watched Chris Wallace's interview of Ted Cruz from this morning's Fox News Sunday. It got me revved up. It certainly made me feel proud of my endorsement of, and campaigning for, this likely next U.S. Senator from Texas:
As I sometimes heard said on the prairies of west Texas whence I sprang: "Stronger'n train smoke!"
The contrast between Ted Cruz and Wallace's preceding interviewee, Obama flack David "I'll gladly pay you Tuesday for a hamburger today" Axelrod, was stark and very bracing indeed.
Wednesday, August 01, 2012
Cruz' big win foreshadows watershed election in November
My prediction had the right result, but the final totals were not nearly as close as the five-point difference I'd predicted: As of this moment, with 100 percent of precincts reported, it's Cruz 56.8% versus Dewhurst 43.19% in a blow-out.
David Dewhurst may want to reconsider even running for reelection to his current spot as lieutenant governor. He and Rick Perry both look like yesterday's news.
This gives me all kinds of warm-and-fuzzies for the November presidential election, friends and neighbors. Texas isn't in play, nor is it a mirror for all of America. And the total GOP turnout was quite high for a primary runoff, but still represented only 8.6% of the state's total population of 13 million registered voters.
But for perspective on that: The Dem run-off for this U.S. Senate seat drew a truly pathetic 1.8% of the registered voter total, a mere 235,708 voters compared to 1,106,224 voters in the GOP runoff. The Dems' run-off winner, in other words, should simply be listed as "Who Cares?"
And here's the genuinely amazing statistic: Ted Cruz drew only 480,558 votes out of 1,406,648 total voters (34.16%) in the May 29th initial GOP primary. In this run-off, he drew 628,336 votes out of 1,106,224 total voters (56.8%). Almost as many Texas Republicans voted in the run-off as in the primary, but Cruz' relative performance among them simply skyrocketed. Cruz' net improvement (147,778 votes) was nearly two-thirds of the total Democratic runoff turnout!
This result bespeaks a well-informed populace among whom highly motivated constitutional/movement conservatives are getting incredible traction. This result sings one word to me: "Watershed." It makes me, again, wish that the national GOP had Paul Ryan at the top of its ticket, because he and Ted Cruz are both emblematic of the party's new generation, the "Young Guns" who, ironically, will return America to sustainable principles and limited government. And I think the hunger for that extends far beyond Texas' borders.
Perhaps Gov. Romney will take the hint.
Monday, July 30, 2012
Cruz vs. Dewhurst: Beldar handicaps the runoff
William A. Jacobson at the Legal Insurrection blog reports: Upset brewing in Texas runoff? PPP says Cruz up big. (Hattip: Instapundit.) This post is adapted from a comment I left there earlier tonight.
I put almost no faith in political polls as a general rule. But I am cautiously optimistic about Ted Cruz' chances in his primary-election runoff against David Dewhurst. I'm going out on a limb to predict that Ted Cruz will win by five or more points.
(1) By merely forcing a runoff, Cruz instantly gained the strategic advantage. He’s been exploiting it adeptly. Dewhurst started with a VAST name recognition advantage among Texas Republicans. But he has never had a serious primary or general election challenge in his previous state-wide races, and his actual performance in office as lieutenant governor was obscure except among those who closely follow state-house politics. So Dewhurst’s support was the proverbial mile wide but only an inch deep.
Dewhurst therefore should have pulled out all the stops against Cruz for the primary. Dewhurst was counting on the third and fourth candidates in the race (former Dallas mayor Tom Leppert and former SMU running back/sportscaster Craig James) to draw most of their support away from Cruz. Instead they drew most of their support from Dewhurst — depriving Dewhurst of the primary-election simple majority that would have prevented a run-off.
(2) When Dewhurst has asserted that most or all of Cruz’ support comes from out-of-state generally — or from Washington, D.C., in particular — that accusation has rung false in the ears of every Texan who’s been paying attention. Cruz lacked Dewhurst’s broad name recognition, but long before the Tea Party movement, Cruz had deep and passionate support among Texas' politically aware movement conservatives. Based on Cruz’ superb performances before the U.S. Supreme Court as Texas’ solicitor general, we were already talking, writing, and blogging about Ted Cruz as a potential U.S. Senator back during Dubya’s first term.
Cruz has built on that support very steadily, and the Tea Party connections and the endorsements from folks like Gov. Palin and Drs. Ron & Rand Paul have indeed brought him visibility. But conservative Texans aren't xenophobic, and nobody here confuses Sarah Palin with Olympia Snowe, nor Rand Paul with Arlen Specter; we're reasonably picky about which out-of-staters we mock as RINOs.
(3) On a net basis, I think it's quite likely that Dewhurst's negative ads will end up costing him runoff votes, not winning them. Dewhurst and Cruz were both already doing some hard-hitting negative advertising even before the initial primary election. But with the additional time (and advertising) permitted by the runoff, many Texans who’d previously been generally aware and generally approving of David Dewhurst as lieutenant governor have found cause for second thoughts. They've learned, to the disappointment of many, that Dewhurst has actually made quite a few legislative compromises that undercut his claim to be a thorough-going conservative.
Worse, they've seen that Dewhurst has a real and very ugly mean streak. That mean streak is no surprise, however, to anyone who's followed Dewhurst's wielding of power as Texas' lieutenant governor: The man has always had sharp elbows and a sharp tongue when he close to employ them. Imagine a rough cross between J.R. Ewing, Bob Dole, and John McCain — each on a bad day.
Fortunately for both Cruz and Dewhurst, though, whatever damage either has done to the other's reputation during this primary election is unlikely to matter in the general election: Obama was never competitive in Texas in 2008, and he's even less competitive here today; he will have negative coattails in this state come November. Neither candidate in the Dems' primary runoff has a fraction of the appeal that Bill White had as the Dem gubernatorial candidate in 2010, and he lost decisively; the Dems haven't won a major statewide election since 1994, and this year's election will extend that losing streak. This runoff will effectively determine Texas' next junior U.S. Senator.
(4) Runoff-election voters are exactly the kind of people most likely to be turned off by negative campaigning that insults their intelligence — but that's exactly the kind of negative campaigning that Dewhurst has chosen to wage. A lot of negative campaign tactics are geared to the politically illiterate. But the Texas Republicans who are likely to turn up in a low-turnout run-off election are relatively better-educated, at least politically, than either their initial primary-election or general-election counterparts. Only the committed bother to show up for primary election runoffs; movement conservatives punch above their weight in runoffs.
Those who understand the Rule of Law and the ethical responsibilities of lawyers acting within its adversary system, for example, are inherently less likely to fall for character assassination attempts which depend upon misattributing to a lawyer who's running for public office the most unsavory characteristics and views of his (or his firm's) most unpopular clients. There will be a higher proportion of primary voters who know, for example, that the second President of the United States, John Adams, had ethically and honorably represented the British soldiers accused in the Boston Massacre even while he was among the most ardent of American revolutionaries. Those voters can look at Cruz' legal career in context; they can appreciate the conservative causes he championed so ably as Texas' solicitor general; and they can draw the appropriate inferences from the genuine respect that Cruz has earned from judges and appellate lawyers of all political persuasions.
As a result of Dewhurst overplaying his hand by going so negative, a lot of Texans who would happily have voted for Dewhurst in November if he’d won the primary outright have now decided that they don’t want to vote for Dewhurst at all — ever again — for anything. If Cruz wins this runoff, expect Dewhurst to draw a serious primary challenge if he runs for lieutenant governor again in 2014. It's not hard to imagine Dewhurst running for governor instead, even against the incumbent. Speaking of whom:
(5) The diminution in Rick Perry’s luster means he’s had less that could rub off onto David Dewhurst. A considerable portion of Dewhurst’s starting advantage and name recognition was closely bound up with the governor with whom he’s run so frequently, and so successfully, in state-wide elections.
That’s somewhat ironic, because until Perry endorsed Dewhurst against Cruz, Perry and Dewhurst had not been particularly close; they could have been most charitably described as natural rivals for power in Austin who sometimes cooperated with, and just as often opposed, one another.
Perry’s disastrous presidential campaign didn’t hurt him as badly in Texas as it did outside the state, but it still remains to be seen just how badly Perry’s self-immolation will hurt his own long-term standing with the Texas conservatives who’ve kept returning him to the governor’s mansion. My own sense is that Perry is himself now vulnerable to a primary challenge in any future statewide race he runs. By endorsing Dewhurst and campaigning against Cruz, Perry has further dismayed a lot of movement conservatives and Tea Partiers who might have forgiven or forgotten Perry’s debate performances last fall. He’s certainly in no position, for example, to challenge in 2014 for the U.S. Senate seat now held by John Cornyn.
I will support the GOP's nominee whether it's Dewhurst or Cruz. But I fear that Dewhurst would be a "Peter Principle" senator. And even if the Senate doesn't represent Dewhurst's personal level of incompetence, at best he would be a thoroughly conventional senator who's unlikely to ever break out of that crowd of fifty pairs of presidential wanna-bes.
Cruz could stand out among them, and he may well be destined for even bigger responsibilities. Conservative Texans should view their vote for Ted Cruz in this runoff as an inspired long-term strategic investment in Texas' and America's future.
UPDATE (Mon Jul 30 @ 4pm): See also National Review's editors' latest runoff election endorsement, Yes, Ted Cruz for Texas. Key paragraph:
Given the intensity with which conservatives prefer Mr. Cruz to Texas’s popular lieutenant governor, some Republicans have asked, not unfairly, “What’s so bad about David Dewhurst?” Six months ago, our answer might have been: “Nothing, really, if there weren’t a much better choice available. Ted Cruz is far and away a preferable candidate for conservatives seeking an effective and articulate champion of their ideals.” But much has happened since the early days of this race, and Mr. Dewhurst’s vulgar and dishonest campaign of scorched-earth ad hominem against Mr. Cruz raises serious questions about his judgment and his commitment to conservative values.
Yeppers, that's about right.
Tuesday, January 24, 2012
Beldar endorses Ted Cruz for the U.S. Senate from Texas
I meant to post something along these lines many weeks ago, but — better late than never — this will confirm my enthusiastic endorsement of Ted Cruz in the upcoming Texas GOP primary race for United States Senator, to fill the seat being vacated by Sen. Kay Bailey Hutchison.
Ted is someone who first came to my attention during the Texas redistricting litigation in 2003-2004, and he did a genuinely remarkable job as Solicitor General for the State of Texas from 2003-2008. In that capacity, he was the chief appellate lawyer for the State of Texas before the U.S. Supreme Court and all the state and federal appellate courts. And he has been simply superb in every aspect of that job, including briefing and oral argument on several blockbuster SCOTUS cases. He's already been a genuine hero as a public servant; his conservative instincts and principles are thorough-going and deeply rooted in a compelling personal history; and I have no doubt that he can bring that same level of excellence, that same earnest public servant's heart, on behalf of the people of Texas when he's in the U.S. Senate.
I have no ax to grind with two of Ted's three primary opponents. Lt. Gov. David Dewhurst has been an effective leader in an important job, and former Dallas mayor Tom Leppert has earned his fans. (I have a hard time taking the fourth candidate, former SMU running back, ESPN sportscaster, and political rookie Craig James, very seriously as a candidate for this important an office.) I expect there will end up being a run-off between Cruz and Dewhurst, and that's fine.
But I commend to you Brian Bolduc's cover-story on Ted in a recent issue of National Review to help you understand why Ted Cruz is among the up-and-comers of the GOP on the national stage. This is a strategic vote, one that Texas conservatives should make not just for now but for the future.
Ted Cruz simply scares the hell out of the far-sighted strategists of the national Democratic Party, for the very best of reasons. The Angry Left website Think Progress, for example, labels Cruz a "radical" candidate with "fringe constitutional theories" — hysteria they reserve for conservatives who genuinely threaten them the most, whether in the halls of the SCOTUS or on the campaign trail.
I've contributed to Ted's campaign and encourage others to consider doing so. Indeed, I'll be running an unpaid side-bar link to his campaign website throughout the primary season and, I hope, through the general election. Good luck, Ted! I know you'll do us proud.
Friday, January 20, 2012
In 9/0 ruling, SCOTUS smacks down 3-judge federal court that redrew Texas' Congressional districts; stresses state government's superior role over federal courts in determining the interests of Texas citizens
I've just read today's unanimous, per curiam (unsigned) opinion by the United States Supreme Court in Perry v. Perez. The media reports I've read so far are, unsurprisingly, either clueless or filled with Democratic Party spin (but I repeat myself), and they're working hard to paint this as some kind of "split" or "mixed" result in which the SCOTUS produced something for both sides to like and both sides to hate.
That's wrong. This is an amazing decision that, fairly interpreted, was a brutal smack-down of a special three-judge federal district court. And the smack-down was delivered because that court had thoroughly ignored the wishes of the voters of Texas — as expressed by their duly elected representatives in the Texas House, the Texas Senate, and the Governor's Mansion — about how to redraw Texas' electoral maps to accommodate the 2010 Census results, in which four additional seats in Congress were apportioned to Texas.
This whole area of the law is highly technical, with a complicated and sometimes internally inconsistent set of judicial, legislative, and historic precedents involved. So even though this opinion is comparatively short and clearly written, it's rough sledding for most non-lawyers to follow, especially when one starts getting into the tall grass of mandatory direct SCOTUS jurisdiction, Section 5 preclearance requirements of the Voting Rights Act of 1965, and relative standards of proof in preliminary injunction hearings. But here's how the opinion tees up the stakes and the big-picture issues:
[H]ere the scale of Texas’ population growth appears to require sweeping changes to the State’s current districts. In areas where population shifts are so large that no semblance of the existing plan’s district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment....
(Even casual students of voting rights cases like me can appreciate the ironic understatement of that last sentence. Indeed, it's been so hard to find "neutral legal principles" that even the Supreme Court has frequently fragmented into multiple small voting blocs in these cases, quite commonly failing to produce any single written opinion that speaks for a majority of the Court. This is the kind of droll observation that John Roberts, as Chief Justice, can put in without it bugging any of the left-leaning Justices enough that they ask him to take it out, and one or two of them aren't completely humorless anyway.)
The Supreme Court continues:
... Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.
To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan — even one that was itself unenforceable — “to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”
So you don't throw out democracy and mount a judicial coup d'état just because some small part of a redistricting map is, or might be, problematic. Instead, to paraphrase today's opinion, what the Legislature passes and the Governor signs — what Texas' own duly elected government does for itself in the exercise of its solemn duties under both the state and federal constitutions — should, as much as possible, trump federal judges who think it's their job to just dive in and fix whatever they think they can improve upon.
After more analysis along these same lines, we get to the meat of the decision, which also conveys the smack-down (citations omitted, boldface, highlighting & first bracketed portion mine):
In this case, the District Court [that comprehensively redrew the Texas Legislature's map] stated that it had “giv[en] effect to as much of the policy judgments in the Legislature’s enacted map as possible.” At the same time, however, the court said that it was required to draw an “independent map” following “neutral principles that advance the interest of the collective public good.” In the court’s view, it “was not required to give any deference to the Legislature’s enacted plan,” and it instead applied principles that it determined “place the interests of the citizens of Texas first.” To the extent the District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of “the collective public good” for the Texas Legislature’s determination of which policies serve “the interests of the citizens of Texas,” the court erred.
Wait, wait ... You don't think that's a smack-down? You expected maybe something snarky, maybe something like Justice Beldar would have written?
Actually, the dry and unemotional language used here again makes me think that Chief Justice Roberts is the likely unacknowledged author. Regardless, here's my translation, in plain English and without the restraint with which judges talk about each others' screw-ups in print:
Whoa! Just WHOA now! Just who do you three judges on the special district court think you are? Who made you the boss of the Texas state government and Texas voters? You're not!
And you may think that you have some judicial Magic 8-Ball which tells you what's best for the citizens of Texas, but we have these Constitutions — one federal, one state — which actually limit your whole role in this fight to way, way, way less than you guys think you're supposed to be doing. So cut it out, right now!"
The rest of the opinion mostly comprises specific examples of things the three-judge special district court got absolutely wrong because they thought, at least in this particular case, that they were philosopher-princes who rule the cosmos instead of federal judges. (Umm, again, that's Justice Beldar's characterization, not from the per curiam opinion itself.)
So this case is already going back, in a big hurry ("judgment shall issue forthwith," sez the SCOTUS, so no motions for rehearing or such), to the special three-judge district court. Their job — now that their attitudes (and legal standards) have been appropriately readjusted — will be to take the map passed by the Legislature and signed into law by the Governor, and to then make the absolute minimum number of changes that are absolutely necessary to fix, temporarily (for 2012 only), only those specific things that the plaintiffs in the case actually demonstrate to be pretty darned likely to be found illegal or unconstitutional.
That's likely to end up looking an awful lot, then, like what the Legislature passed. And that means the Democrats have lost this round in Texas for all practical purposes.
But do you want to know what actually got my motor racing the most when I read through this per curiam opinion? It was this (bracketed portions mine):
This Court recently noted [in the Northwest Austin MUD No. 1 v. Holder case, a 2009 Roberts opinion,] the “serious constitutional questions” raised by [Voting Rights Act] §5’s intrusion on state sovereignty. Those concerns would only be exacerbated if §5 required a district court to wholly ignore the State’s policies in drawing maps that will govern a State’s elections, without any reason to believe those state policies are unlawful.
Friends and neighbors, that's what my tenth grade English teacher at Lamesa High School, Mrs. Koger, trained me to recognize as "dramatic foreshadowing." And since I would very much like to see the SCOTUS agree that it's now time to quit presuming, as a matter of federal law, that today's Texans are racists just because 1965's Texans were racist, I'm very eager to see this play out.
The four liberal Justices likely read that same paragraph, though, and thought (to themselves; they wouldn't quibble about this with the Chief, or decline to concur over it): "Yeah, we'll just see about that when the time comes." But the Beldar SCOTUS Tea-Leaf-o-Matic™ says Chief Justice Roberts is signaling that he has the votes for what will be a monumental decision in American constitutional law and, indeed, American history.
UPDATE (Fri Jan 20 @ 10:30pm): The PBS NewsHour actually does a pretty good job reporting this story, in large part because they interviewed and relied upon election law expert Rick Hasen. Prof. Hasen has been very gracious in some previous blog discussions with me about Texas redistricting. He's a reliable leftie, but he's wicked smart, and he tries to be (and mostly succeeds in being) intellectually honest (even when he's wrong). Prof. Hasen also picked up on the broader Voting Rights Act implications. The NewsHour headline (which Prof. Hasen links and republishes without demurrer on his own blog): "Supreme Court Ruling on Texas Electoral Maps 'Huge Setback' for Democrats." And yes, that's exactly right.
UPDATE (Sat Jan 21 @ 3:10pm): The Wall Street Journal's editorial page also mostly gets this story right, including the implications for future litigation on the continuing constitutionality of Section 5, in "Holder's Texas Defeat: The Supremes deliver a unanimous drubbing on redistricting." (But you won't learn anything there I didn't already say here; and the Journal's admirably concise telling leaves out some details I tend to savor.)
A lot of the other commentary I'm reading about this decision completely misses the parts of the opinion in which the SCOTUS stressed that there can't be any map re-drawing without the required evidentiary showing of a legal violation to justify it. Even some conservative bloggers I've read seem to be assuming that the three-judge court can still produce, if it's so inclined, another map that suits the Democrats better than what the Legislature passed and the Governor signed.
That is emphatically wrong. For that to happen, at least two of the judges of the three-judge special court would have to publicly defy the SCOTUS. The last time something like that happened on a really important case was in 2000, when the Florida Supreme Court pointedly ignored the SCOTUS after the SCOTUS had already said, "Hey, you can't do that, so cut that out, and don't make us come down there and smack you!" The Florida court's institutional reputation has still not recovered, and the reputations of the individual judges who'd led the defiance simply vaporized because they were exposed as lawless partisan hacks.
No, sir or ma'am, these three judges will indeed now understand that every single alteration they make from the Texas Legislature's map is going to be scrutinized under a SCOTUS microscope. Indeed, they've been given a list of specific (and otherwise likely) screw-ups that they have been publicly warned not to repeat. And the whole point of this unanimous, per curiam opinion was to send an unambiguous set of directives: There are no concurrences or dissents to muddy the water, and these three judges now know that what they did the first time couldn't find a single supporter on the SCOTUS. Repeat: these judges couldn't get so much as a kind word even from Justice Ginsburg, the long-time general counsel of the ACLU, on this one. That's such a harsh reality that it can't escape notice.
So these three judges would have to be utter fools to defy the Supreme Court. As I wrote in a comment below, there's no shame in being reversed, nor even in being reversed by a unanimous SCOTUS. There is, though, shame in being reversed twice in the same case on the same issues; and these three judges are going to take lots of care to see that doesn't happen.
UPDATE (Sat Jan 21 @ ~5:00pm): This post is a fine example of why I complimented Prof. Rick Hasen for trying to maintain his intellectual honesty despite his partisanship. He admits to having "gotten a fair bit of pushback that the outcome after remand is far less certain" after his description of yesterday's decision as a "big win for Republicans." But he gives three reasons for why he "think[s] it is unlikely that whatever maps come out of the Texas court (and face a possible second emergency appeal to SCOTUS) are not likely to be nearly as good as the maps which came out now." (By "good," Prof. Hasen means, "pro-Democrat.")
His first and third points, I've already made here. He's correct that it's the Texas Legislature's maps, "(rather than starting from scratch maps) which will govern what the final maps look like." He's also correct that "The three-judge court is likely to be chastened by the unanimous Supreme Court decision."
His second point amplifies on something I've noted in a way that I think is also probably correct (emphasis mine):
In drawing those maps, the Supreme Court went out of its way not only to say that the three-judge court should not deviate from Texas’s plan any more than necessary to solve any constitutional/voting rights violation. The Court specifically pointed out that the court should not draw any minority coalition districts to achieve voting rights results. This makes it more likely that the majority-minority districts will have more minority voters in them and will not lead to the creation of extra Democratic seats.
I'm sure Prof. Hasen would protest and disagree, but I respectfully submit that that paragraph contains an inescapable but implicit acknowledgement that what this is all about is partisan politics, not remedying of racial discrimination. And its premise is that only Democrats can reflect the views of minority voters — an offensive and, indeed, a racist premise. (Again, he would protest and disagree.) But as always, the Dems want to win in federal court what they can't win at the electoral polls. They haven't won a state-wide race in Texas since 1994, and they've lost their majorities in both chambers of the Legislature, because Texas voters have rejected them — repeatedly, comprehensively, at every level and despite all their class- and race-warfare. The likely composition of the Texas Congressional delegation in January 2013 will now, correctly and fairly and legally, reflect that rejection.
UPDATE (Sun Jan 22 @ ~5:40pm): I thank Prof. Hasen for this gracious cross-link to this post. (I'd sent him an email "ping" as a courtesy since I don't think his blog uses trackbacks and his comments are disabled.) In it, he writes (briefly, and not tendentiously but, I hope, with good humor):
For the record, I hardly think it racist to note that minorities, especially African Americans (but aside from Cuban-Americans in Florida) tend to vote for Democrats by very lopsided margins.
To which I'd respond, not quite as concisely:
Of course it's not racist to merely note it, especially as history. But it's a racist judgment (i.e., an act; I'm not indicting people but rather conduct and decisions) to assume or presume that so it must always remain. And partisan race-based politics is an illegitimate basis to strip state legislatures (and, ultimately, their constituents) of their constitutional rights and obligations to redistrict. In Chief Justice Roberts' inarguable formulation: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
UPDATE (Sun Jan 22 @ 8:10pm): Concision is definitely something I lack, but I haven't vented about this for a few years. So, expressed slightly differently:
1. Democrats believe as a matter of political faith that, by definition, their party includes no racists and can commit no racist acts; rather, Democrats are merely people who insist that government, and especially the federal courts, trample democracy to reorder society (including Texas' Congressional districts) in order to dictate winners and losers on the basis of skin color. Nuance: I learnt it from that "Animal Farm" book ("four legs good!").
2. (a) Partisan gerrymandering is one of democracy's most unappealing, raw aspects. Democracy itself is a terrible system of government with many historically demonstrable failings, redeemed only by the fact that it's nevertheless the least worst form of government ever yet invented and implemented.
(b) The Democrats are complaining bitterly that in the Texas redistricting, Republicans discriminated against Democrats and in favor of Republicans. Well, duh. That's not disputed; that is the essence of gerrymandering, which is about sorting voters into districts based on how those voters are likely to vote. Every alternative to gerrymandering comes at a cost to small-d democracy; I haven't yet seen one which was worth that, and I don't believe any such alternative exists. The Founders' decision to put the responsibility for redistricting at the most organic, grass-roots level of government, the state legislatures, was indeed a choice of the least-worst alternative.
(c) However, proof that Republicans simply discriminated against Democrats also wins them no relief in federal court. So Democrats have to engage in this fiction that by discriminating against Democrats, the Republican majorities in both chambers of the Texas Legislature and the Texas Governor were all actually discriminating against racial minorities.
(d) That's counter-factual; the Democrats claimed that in 2003-2004 too, and were ultimately laughed out of court because all they had to support those claims was wild speculation and innuendo.
(e) In fact, neither Republicans nor Democrats have any need to discriminate anymore on the basis of so crude and statistically inaccurate metric as race. They can draw more useful, better-gerrymandered maps using other, much more precise data on who's likely to vote Democratic and who's likely to vote GOP.
(f) Nevertheless, absent actual evidence of discrimination on the basis of race (which doesn't exist, because that's not what's been happening), the Democrats' proof of an alleged voting rights violation depends entirely on their ability to win a purely legal argument (unmoored from evidence) that conflates "Democrat" with "racial minority." Without that presumption and assumption, their legal position falls to pieces, and is exposed as an accusation that Republicans are (gasp!) political.
Saturday, September 24, 2011
Review: Thumbs up from Beldar for James Hime's novel about 9/11, "Three Thousand Bridges"
There's considerable truth to the cliché that inside of every lawyer lurks a wanna-be novelist. Indeed, it's true even of tax and real estate lawyers. The surprise is when a lawyer actually manages to write a readable novel — much less a compelling and intensely authentic one!
But the proof that can happen is "Three Thousand Bridges," a new novel by Jim Hime — with whom I worked when he was a very capable young tax and real estate partner, and I was a trial department associate, at Baker Botts in the 1980s.
I'd been pondering buying a Kindle for some time, and when I learned (via Facebook, from another Baker Botts alum) that Jim's new book is being released only as an e-book, my curiosity about both book and gadget crossed the tipping point, and "Three Thousand Bridges" became my first Kindle purchase through Amazon.com.
(Of the Kindle, I'll say this: I like it better than I thought I would, and getting used to it was easier than I expected. The good things about it — price; capacity; ease of content delivery; spectacular battery life; and superb text legibility on a screen that doesn't tire your eyes — are very good indeed. In other ways, it very much reminds me of an Apple Macintosh computer circa 1986: its technology and interface both seem reasonably elegant but seriously dated. I suspect the Kindle is better adapted for the simple and singular task of serious and sustained reading than an iPad or other comparable device, but I haven't owned one of those yet, so I'm just guessing based on my limited experience trying to read other novels on my very-good-quality desktop LCD monitor. Reading on the Kindle beats that by a wide margin.)
Hime is, and writes like, a native Texan who's also grown wise in the ways of the world outside the Lone Star State. "Three Thousand Bridges" weaves a tale that incorporates some very powerful and poignant recent history of our state and our country. Here's an accurate blurb from biographer Hershel Parker, as reprinted on Hime's website:
The mystery writer James Hime made his mark with The Night of the Dance (an Edgar finalist) and Scared Money, both heralded by other novelists and reviewers for memorable characters, taut prose, and a comedic take on how things and people work. Hime nailed dialects as if no one else had ever listened to Texans talk, and readers settled back to await more adventures of Jeremiah Spur and Clyde Thomas. Adventures will follow, we are assured, but Three Thousand Bridges is of a different order of achievement, not a mystery novel but a novel with mysteries. Its unlikely and at first unlikable hero, a Viet Nam veteran, is the outrageous and outraging Texas oil supply man, Cole Simms — a belated cousin, we recognize, of Mark Twain's Pap Finn. In sculpted prose, pacing his revelations, Hime traces his bedeviled hero's journey across the South just after 9/11, toward Ground Zero and toward self-insight. Hime, who escaped from the South Tower of the World Trade Center with a printout of The Night of the Dance after witnessing the crash of American Flight 11 into the North Tower, has created a classic narrative of transforming American experiences, personal and national. After its wide initial popularity, I predict, Three Thousand Bridges will endure in college classrooms as a powerful, accessible testimony about an unthinkable time.
And I enjoyed, and agree with, Arden Ward's review of the book and interview with Hime, which includes some marvelous facts and factoids like these (bracketed portions in original):
Hime was halfway through his descent, on floor 35 or 36 he recalls, when the building rocked violently — "Almost enough to knock you off your feet," he remembers. Still, he kept walking, finally reaching the street.
"That was the first time I saw the gaping hole in 1WTC [the north tower of the World Trade Center] and the fire blazing out of 2WTC at just about the level we had been at maybe 30 minutes earlier." ...
Hime began wondering about his father, who hadn’t known he was in New York City at the time of the attack. "I was fascinated by the premise of what it would have been like to be a father whose son goes missing in New York City on that day. Suppose that no one knew why he was there to begin with, and you wake up on the morning of 12 September and know only that he was missing. What would you do?"
It's pretty much impossible to write about Texas without bumping into stereotypes and clichés. My favorite thing about this book, I think, is the way Hime embraces those — and then proceeds to bend and twist them to one degree or another, in ways that turn out to be quite funny. "Three Thousand Bridges" gets the Beldar Stamp of Texas Authenticity. It's a danged good book, and I'm proud of my friend for writing it.
Sunday, September 11, 2011
On 9/11/01 plus ten
For four and one-half year, including the four football seasons from Fall 1975 through 1979, I had the honor of playing trumpet in the Showband of the Southwest, the University of Texas Longhorn Band. Beginning with a summer band concert in June 1975, and on several other occasions afterwards, I had the thrill of playing the Carmen Dragon arrangement of "America the Beautiful," which is one of the most breathtakingly beautiful versions of that song I've ever heard.
Here's the current LHB, with a re-arrangement of Carmen Dragon's arrangement done for LHB by my good friend and KKY brother Randol Bass, from last night's tribute (at the BYU vs UT halftime) to 9/11's victims and those who've defended our country before and after. It still sends chills up my spine and brings tears to my eyes, and yes, I gave in to the immediate compulsion to get out my trumpet so I could play along at home with the brass triplets at the ending:
I am a man of words. But today I'm going to let this music — played by these college-age men and women, in a tradition of which I am proud to have been a part — say everything I have to say on the subject.
If you don't feel your heart swell with emotion by about 1:20 in this clip — "Thine alabaster cities gleam / Undimm'd by human tears" — then you're not any flavor of American to which I can relate, and you may not be human at all.
Friday, July 15, 2011
Beldar disputes pollster Jan van Lohuizen's bizarre assertion that Gov. Rick Perry "never really has done all that well in Texas"
I neither know, nor know of, political pollster Jan van Lohuizen, but in this Q&A with Business Insider (hat-tip Daniel Halper at the Weekly Standard), the editors point out that Dr. van Louhizen's PhD in political science came from Rice University in 1978, and they assert that he "know[s] Texas as well as anyone." And they point out that he's served as "George W. Bush's pollster in both of his presidential election campaigns," and that Dr. van Louhizen "is highly regarded by political professionals in both parties." I have no reason to doubt any of that.
But they then quote Dr. van Lohuizen as saying this about the potential presidential prospects of Texas Gov. Rick Perry:
... I don’t know if [Perry] will run but my sense of it is that he will — quite a few of the issues he pushed in the legislative session and in the follow-up special session were clearly designed to seed a run for President.
His assets are that he is a good communicator, appeals to tea party types, and he can point to the strength of the Texas economy. On the liabilities side, however, he did not get the things he introduced for that purpose, and the criticism of the balanced budget he passed is getting rougher and rougher: it is basically as flimsy as Gerry [sic ] Brown’s balanced budget. Add to that that he never really has done all that well in Texas. He got a 2nd full term with less than 40% of the vote in a 4 way race, and barely avoided a runoff in his own primary against a weakened Senator and an unknown.
Add as well that some of the issues he is associated with are deeply problematic to conservatives, including his record on property rights, increasing taxes, ‘pay to play’ fundraising and any amount of other raw material for opposition researchers that 10 years as Governor generates.
I agree in part with the first paragraph, and I won't quibble with parts of the second; but I think the end of the second paragraph and the entire third paragraph are both badly misleading — indeed, contrary to objective reality.
I don't have a strong sense of whether Gov. Perry will or won't run, and I have utterly no inside information either way. As my sidebar suggests, I've got another current non-candidate I'd like to see drafted for the GOP nomination; and I'm not one of those trying to drum up support for a Perry candidacy, at least not right now. But I've voted for Gov. Perry many times for many different offices over the last twenty years, and I can easily imagine myself doing so if he were part of a ticket running against Obama.
Nevertheless, the hot-button issues from the last Texas legislature (including special session(s)) to which Dr. van Lohuizen refers — voter ID, sanctuary cities, border security — are controversial at both the state and federal levels anyway. It would be a very dim Republican governor anywhere, but especially along the Mexican border, who wasn't keenly focused on those issues, regardless of whether he or she has aspirations for higher office.
So where Dr. van Lohuizen sees smoke signals, I see smoke puffs, frankly. I don't think Perry's interaction with the last Legislature furnishes very persuasive evidence that Perry was, or is, planning to run for POTUS. But that's a matter of interpretation, not observation; if Dr. van Lohuizen reaches the opposite conclusion from mine, that doesn't trouble me at all.
As for matters fiscal: Although we're comparatively better off than most other states,Texas still needs to squeeze value out of every penny, and like every other state government, ours has been trying to find creative ways to avoid raising taxes. There are reasonable arguments to be made that our proposed solutions here in Texas include some one-offs and some gimmicks; there's room for debate about our budget, and there's been quite a bit of it.
But there's not a rational soul in the universe who'd trade Texas' economic and fiscal situation for California's. Whatever details may underlie Dr. van Lohuizen's conclusion, to the extent he's trying to make a comparison between California and Texas, or between Jerry Brown and Rick Perry, he's simply full of bull. I have a hard time imagining two more vividly contrasting politicians, in fact, than Brown and Perry, both on matters of style and of substance.
Much, much more perplexing and troubling to me is Dr. van Lohuizen's assertion that Perry "never really has done all that well in Texas."
Rick Perry first won office as a Texas state representative (as a Democrat). After making a splash as a legislator and changing to the GOP, he won election over a popular incumbent Democrat, Jim Hightower, to become Texas Commissioner of Agriculture in 1990. He was reelected with 61% of the vote in 1994. Perry followed the legendary Bob Bullock to become Texas Lieutenant Governor in 1998 in a hard-fought race against Dem John Sharp, who'd previously won state-wide election as Texas Comptroller. By 1998, of course, it was already widely expected that then-Gov. George W. Bush would run for president in 2000, so those who elected Perry to the Lieutenant Governorship in 1998 certainly weren't surprised when Perry succeeded Dubya as Governor at year-end 2000.
Dr. van Lohuizen's assertion simply ignores the fact that Perry then won reelection in his own right in 2002 with 58% of the vote — a blowout.
Dr. van Lohuizen is correct that Perry's re-election margin in 2006, in a four-way general election field, wasn't nearly so impressive. It was a very odd election for a number of reasons besides the size of the field.
But I simply have no clue what Dr. van Lohuizen was talking about when he described Texas' senior sitting U.S. Senator, Kay Bailey Hutchison, as "a weakened senator" before or during the 2010 GOP gubernatorial primary. What are we supposed to think from that — that she was like Idaho's Larry Craig, barely hanging onto any office anywhere? That's utter nonsense that's insulting to Sen. Hutchison and to the 450,000+ Texans who voted for her in the 2010 primary, but it also undervalues the opinions of the 759,000+ Texans (51%) who voted for Perry.
To the contrary, Sen. Hutchison wasn't "weakened," but had instead long telegraphed her intention to leave the Senate to run for the Texas governorship. She had powerful, deep, and long-standing connections in the Texas GOP's old guard (going back to the John Tower/G.H.W. Bush days of the 1960s and 1970s Texas GOP). She had (and has) a talented staff and an experienced and successful campaign team. And she had tons of campaign money and volunteers. In sum, U.S. Sen. Kay Bailey Hutchison was a formidable candidate whom Rick Perry nevertheless beat convincingly and without a runoff.
And yes, Sen. Hutchison's campaign had years of raw material about Perry from which to do opposition research, and she had all the resources and incentives anyone could want in order to exploit to the hilt any Perry missteps from days past. The exact same stuff that Dr. van Lohuizen cryptically references in the third of the paragraphs I've quoted — the supposed "issues [Perry] is associated with [which] are deeply problematic to conservatives" — absolutely failed to catch on in Sen. Hutchison's bare-knuckled attacks on Perry during the 2010 GOP primary. I'm unaware of any reason to think that those same attacks would catch on when made by, say, Mitt Romney or Tim Pawlenty or Michelle Bachman — and Dr. van Lohuizen doesn't give us any such reason.
Indeed, Dr. van Lohuizen notes, accurately, that Perry "appeals to tea party types," but he fails to mention that the third candidate who ran against both Perry and Hutchison in the 2010 GOP primary — Debra Medina, whom Dr. van Lohuizen fairly describes as an "unknown" — was a self-proclaimed Tea Partier who briefly surged based on pure pro-Tea Party movement/anti-incumbency sentiment. Both Perry and Hutchison had strong potential vulnerabilities to such a candidacy; sitting GOP politicians in many other states lost their primaries to just such candidates.
But Perry adeptly seized the Tea Party movement's themes, parried (no pun intended) the anti-incumbency attacks, and then rode a Tea Party/constitutional conservative/anti-Obama surge of 2.7 million votes into a crushing 55% to 42% general election victory over popular Houston ex-mayor (and former Clinton Deputy Secretary of Energy and Texas Democratic Chairman) Bill White — easily the strongest and best financed Democratic gubernatorial candidate since Dubya whipped incumbent Ann Richards in 1994.
Running and winning overwhelmingly on an anti-incumbency, anti-government theme — when you've been part of government for almost three decades yourself — is a fairly deft piece of political footwork, in my humble opinion.
I'm pretty sure, in fact, that Rick Perry has won every election he's ever run in. He's definitely won every state-wide race for public office he's ever run in Texas. And he's now served as Texas' chief executive longer than anyone else in a history that dates back to 1836.
How a PhD in political science can interpret that as "never really [doing] all that well in Texas," I simply cannot fathom, and I therefore respectfully dissent. Now, it's true that Gov. Perry hasn't yet been quite as successful as his immediate predecessor was at parlaying the Texas governorship into higher national officer. And to win higher office, Perry would once again have to overcome his deservedly lingering shame from having been Texas manager for Al Gore's aborted 1988 campaign for the Democratic presidential nomination. But we've mostly forgiven him for that here already, and Ronald Reagan was a converted Dem who saw the light. So: short of running and winning the presidency, just how much more Texas history would Rick Perry have to write to satisfy Dr. van Lohuizen that Perry's managed to make something of himself on the Texas political scene?
UPDATE (Sat Jul 16 @ 2am): Hilary Hylton has a nicely detailed and perceptive examination of Perry's history with Gore. The Perry campaign should be absolutely thrilled with this essay, since it ends up not only "pulling the tooth" before it could be used to bite Perry, but indeed it presents a compelling tale of Perry's conversion to the GOP as part of a contemporaneous and much larger shift to the GOP throughout Texas.
Thursday, May 19, 2011
Spring supper on a restaurant patio in southwest Houston
I am, for the most part, a creature of habit.
But my neighborhood and its environs are multi-cultural, and I live on a short residential street tucked in amongst Houstonians of very diverse races, languages, ethnicities, and national origins. I've lived here almost ten years now, and that suits me fine.
Occasionally, on a whim, I will set off, hungry, along one or another of Houston's many commercial streets almost at random. I tend to look for places I've never been before, nor heard or read of, but that seem to have been in business a good while.
Tonight I landed at a restaurant that bills itself as "Mex-Mex," in contrast to "Tex-Mex." I sat outside on the patio to enjoy a breezy afternoon in Houston's too-short Spring. It wasn't yet quite 5:00 p.m. and Friday's not until tomorrow, but nevertheless a frozen margarita was involved. Maybe two.
The waiter gave me a menu, but I handed it back and asked him to bring me whatever the restaurant is most proud of today. It was a pork loin slow-cooked in a rich tomatillo salza verde — bone in, but it melted from the bone at the touch of my fork. It was first-rate.
While waiting for and then eating my meal, I watched a young Hispanic family at the next table — husband and wife, plus two children, the daughter in perhaps the seventh grade and a son in perhaps the fourth or fifth. The entire family was bilingual in Spanish and English (my Spanish is poor but occasionally serviceable if I conceal my embarrassment) and moved without pause between each, with some Spanglish in-between. The two children were adorable and impeccably behaved. The pappa wore bermuda shorts that Ann Althouse might find inappropriate, but it was clear that his most important agenda item for this day was his supper out with his familia, and from the reaction of the wait-staff and restaurant owner and their respectful deference to the pappa, I'm confident they're regular customers.
The waiter brought me the dessert tray. After a bit of banter, I rationalized that I was entitled to dessert because I hadn't eaten much of the rice, I'd had no appetizer (unless one counts a few tortilla chips, which the rules say must not be counted), and I'd had no lunch today (and will have no late meal either). So I ordered coffee and something sweet and yummy that I haven't had before and don't know what to call.
I had almost finished my coffee when the waiter brought the dessert tray to the next table. "I'll have one of each!" declared the young man, very seriously. Because I'd (jokingly!) said exactly the same thing 10 minutes earlier when presented with the same tray, I practically doubled over laughing, as did the over-hearing patrons at the nearest three or four tables. The youngster ended up choosing an ambitious chocolate concoction that was roughly the volume of an adult-league soccer ball, but he shared it with his sister and his parents.
After I'd paid, I paused at that table on my way out. In mixed Spanish and English, I told the dad that he was obviously a very lucky man. "Con su permiso?" I asked before addressing his wife, and he nodded and smiled. "Your children are beautiful, and well-behaved, and so smart!" I said to her. This produced four smiles, two of them encrusted in large chocolate crumbs.
That scene, or one indistinguishable from it in all important regards, could have been seen at hundreds of restaurants tonight all throughout Houston, and all of Texas, and much of the U.S. I don't tell this anecdote to deny, or even minimize, the economic, ethnic, racial, or language hurdles that remain, nor to paint myself or my city as part of an optimal post-modern melting pot in the best of all possible worlds.
But I do love my city, and my state, and my country all the more for evenings like this one, and I'm glad to be reminded, again, that most self-isolation is self-imposed, self-destructive, and capable of self-resolution upon even casual, respectful contact.
I found the good meal I was looking for, but I'll digest it with the good cheer that comes from connecting, even briefly but with sincerity, with neighbors whose names I don't know, but whose dreams I understand and share. America!
Wednesday, May 18, 2011
Beldar on Preston on "Perry 2012"
My fellow Texan Bryan Preston has a provocative and well-argued post up at The PJ Tatler entitled "Why Rick Perry should run for president." I've left a few comments, as have a few other conservative Texans, and I think it's a fairly interesting thread overall.
Wednesday, March 02, 2011
The latest from Tripoli? From Cairo? Tehran? ... Philadelphia?
When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted, and so far from being a guarantee for the enjoyment of those inestimable and inalienable rights, becomes an instrument in the hands of evil rulers for their oppression.
When the Federal Republican Constitution of their country, which they have sworn to support, no longer has a substantial existence, and the whole nature of their government has been forcibly changed, without their consent, from a restricted federative republic, composed of sovereign states, to a consolidated central military despotism, in which every interest is disregarded but that of the army and the priesthood, both the eternal enemies of civil liberty, the everready minions of power, and the usual instruments of tyrants.
When, long after the spirit of the constitution has departed, moderation is at length so far lost by those in power, that even the semblance of freedom is removed, and the forms themselves of the constitution discontinued, and so far from their petitions and remonstrances being regarded, the agents who bear them are thrown into dungeons, and mercenary armies sent forth to force a new government upon them at the point of the bayonet.
When, in consequence of such acts of malfeasance and abdication on the part of the government, anarchy prevails, and civil society is dissolved into its original elements. In such a crisis, the first law of nature, the right of self-preservation, the inherent and inalienable rights of the people to appeal to first principles, and take their political affairs into their own hands in extreme cases, enjoins it as a right towards themselves, and a sacred obligation to their posterity, to abolish such government, and create another in its stead, calculated to rescue them from impending dangers, and to secure their future welfare and happiness.
Whence sprung these words? And when, and what did they portend?
Wait, wait — is this one of those Tea Party manifestos or somethin'?
These lines weren't penned in Tripoli or Cairo or Tehran, nor even in Philadelphia. Rather, they're from Washington — more specifically, Washington-on-the-Brazos — and their portent, and place in time, is found in the document's title:
The Unanimous Declaration of Independence made by the Delegates of the People of Texas in General Convention at the town of Washington on the 2nd day of March 1836.
But doncha know they could still say, in Egypt of Mubarak, or in Tehran of the Mullahs, or in Tripoli of Kadafi, just what these Texians said of the Mexican government in 1836 — that it "hath been, during the whole time of our connection with it, the contemptible sport and victim of successive military revolutions, and hath continually exhibited every characteristic of a weak, corrupt, and tyrannical government."
Shall it be said of the Egyptians and the Libyans and the Iranians that — as the Texians said of the fellow citizens they were leaving behind in Mexico — "We are, therefore, forced to the melancholy conclusion, that the Mexican people have acquiesced in the destruction of their liberty, and the substitution therfor of a military government; that they are unfit to be free, and incapable of self government."
It remains to be seen — sadly, to some extent, still even in Mexico.
Anyway, apparently someone finally told our esteemed Commander in Chief that in the Marines Hymn, there's already this line about the "shores of Tripoli," which goes back to this whole 1805 thing when Jefferson was President and he established the first Navy SEALS or something. So really, keeping all our carrier groups out of the Mediterranean hasn't really been all low-key and non-hegemonic the way you say you intended, and it hasn't been fooling anybody. It's just been America acting really stupid again, since sending ships to protect American interests in Libya is exactly the kind of thing the C-in-C has been calling on the Navy and Marines to do since decades before they took the wood out of that old ship that they used to make your very old desk, Mr. Obama. And yeah, then there was that more recent dustup involving some F-111s and Mr. Reagan, but that was during Barry O's hazy daze so he'd kind of forgotten them too (even though Kadafi has been using it as his #1 applause line in every rally during the twenty-plus years since the Infidels of that self-same U.S. Navy penetrated the Line of Death in the Gulf of Sidra).
Now you, Mr. Obama, have just given Kadafi's radical Muslim successors the applause line they will use: "Where were America's mighty aircraft carriers when Kadafi was calling in airstrikes on his own people?" Way to vote "present," Barry. I sure wish the Spirit of Independence Days' Past, in the form of Sam Houston, could pay a nighttime visit to Mr. Obama's dreams.
And I'm glad the Texians in 1836 didn't have to rely on support from someone like you in their efforts to break free from a corrupt and counter-constitutional military dictatorship. Happy Texas Independence Day! "[C]onscious of the rectitude of our intentions, we fearlessly and confidently commit the issue to the decision of the Supreme arbiter of the destinies of nations."