U.S. and Iraqi Polls

Today the New York Times published an article that seems to say that Iraqis do not favor U.S. troop withdrawal. Toward the end you read that there was an extremely limited sampling of opinions. The Times just published a more scientific poll that says the Iraquis want a withdrawal of U.S. troops by a 2 to 1 margin. This article also fails to mention that the Iraqi parliament, as well as Prime Minister al-Maliki, are calling for withdrawal. (The linked Christian Science Monitor article says that talks are on-going.) By all authority I have been able to find there has been ardent support for withdrawal among Iraqis since at least 2006 and strong support prior to that.

American polls are interesting. A strong majority has favored withdrawal for a long time. Bush’s handling of the invasion and occupation has for some time been viewed disfavorably by a clear majority. Almost 40% of Americans do not understand that McCain is against a timetable for withdrawal. Despite most people disfavoring his approach to the war, most Americans see McCain as the better commander in chief. Early polls on the two candidates are somewhat confusing.

Walls

I just read that a group out of the University of Texas recently petitioned the Organizatin of American States to condemn the wall between the U.S. and Mexico. It of course has already been condemned by Mexico and most of Latin America. While the wall can’t help but deter immigration, it’s overall utility is debatable. No one believes that the petition to the OAS will affect the building of the wall. Human rights considerations, and international law and opinion have not played a significant role in determining U.S. policy recently.

Our wall is to be 2000 miles long, as long as the low estimates of the length of the Great Wall of China. (Some estimate the other wall to be three times this length.)

Whatever your position is with respect to the wall, people agree that it is certainly symbolic of our era. It is a metaphor, a symbol, which for many replaces the Statue of Liberty. The welcoming beacon of freedom is replaced in the minds of many people with the blank expanse of the wall, like an extended palm signaling “halt.” For many people outside the United States our country is seen, not as a sanctuary, and champion, for the oppressed, but as a garrison, walled like a Medieval city-state.

Looking back, Bill Clinton’s euphoric descriptions of globalization (one of his favorite terms) seem naive and distant. The purpose of bridging cultures and identifying common interest has been replaced by phrases like “If you are not for us, you are against us,” “bring ‘em on,” “we are on a crusade,” and the like. We have turned a blind eye to international opinion, like the balnk stare of the wall.

We have not just invested in walling our country, but in creating a honeycomb of walls within it. Political forces have converted the world’s melting pot into a fragmented society in which cultural identity is preserved in part for defensive purposes. We are becoming a society of gated communities which look out at others with distrust and fear.

Our government has a growing list of citizens identified a suspected terrorists. The number of people on the list has apparently passed one million. That’s about 5 for each thousand adults. If you go to BellSquare on a busy day, there should be maybe ten or twenty “suspected terrorists” among your fellow shoppers. We have built walls around airports, public buildings and public gathering places, access permitted by guards only after inspection.

These walls of course are not just metaphorical. We have by far the biggest prison population in the world. More people are in prison than there are in Phoenix, Arizona. A staggering number of our fellow citizens have been through the criminal justice system in one way or another.  Prison construction and management has been privatized to a large degree and has become a booming industry. It could become a college major in some schools like hotel and motel management.

These are the costs of security, as we see it. The cry of “security!” seems to be in the ascendancy. It’s good though to keep it in context.

The Exxon Valdez Decision and Punitive Damages

Exxon Shipping Co. v. Baker (the Exxon Valdez decision) provides an interesting look at our Supreme Court, particularly since so many of the members were selected by our country’s first administration composed of former oil executives.

The decision derives from the worst envirnmental disaster in our country’s history, when millions of gallons of oil were leaked into Prince William Sound in Alaska. The oil came from a supertanker (over 900 feet long) whose drunken captain had left the vessel in the hands of an unlicensed third mate who could not negotiate the passage. The ship ran aground on a reef. Wildlife was destroyed, a habitat rendered toxic and all the people who depended on Prince William Sound for their livelihood, including fishermen in Alaska, Washington, as well as elsewhere, were ruined. The devastation was overwhelming. Even now nineteen years later, oil stained gravel and sand lies just beneath the surface on the shore.

The captain had a history of alcohol abuse and was still intoxicated eleven hours after the incident. Exxon was found by a jury to have acted recklessly, and the jury awarded $5 billion in punitive damages. Exxon appealed, questioning on a number of grounds the punitive damage award.

Before arriving at the Supreme Court, the case was considered by the Ninth Circuit Court of Appeals. That court upheld the jury’s right to award punitive damages, but cut the amount of the punitive damages award in half.

Exxon petitioned the Supreme Court for review hoping to convince it that punitive damages were in appropriate and failing that that even half of the jury’s award was excessive.

Washington’s Attorney General, an ardent tort reform proponent, who campaigned against large jury awards, saw an opportunity for publicity. While actually claiming to his constituents that large jury awards and excessive litigation costs prevented the State of Washington from correcting to the conduct that gave rise to the litigation against the State, he undertook to champion the cause for punitive damages to the Supreme Court. He argued for the right to punitive damages and asked that the $5 billion award be restored.

In a very unusual decision, the Court announced that it was evenly divided on the question of whether punitive damages could be awarded against a corporation under maritime law. The Court said that it would not render a decision on that point, leaving the decision of the Ninth Circuit in place. (With nine members you might wonder how the Court could be evenly divided. Justice Alito recused himself, presumably because of some association with Exxon, creating an even number of justices deciding this case.) In the next few years from two to four of the members of the Court will be replaced and a reconstituted Court could then decide this issue.

The Court, without examining the right to punitive damages under maritime, law chose to consider whether such damages were prohibited by the Clean Water Act and, if not, whether the award was excessive. What is odd about this is that the Court left open the opportunity for it to later decide that there were no punitive damages available under the maritime law, undercutting the entire decision.

This very narrow ruling is becoming a trademark of the new Roberts Court. The new Chief Justice attempts to avoid sweeping decisions and tries to limit them to the facts of the case while seeking to avoid fractious split decisions. In this decision he selected issues that were less divisive than the question of whether punitive damages were available under maritime law.

The Court, after finding the the Clean Water Act did not preempt maritime common law, discussed the roots of punitive damages, tracing it back to English common law, codes from the Middle Ages and even the Code of Hammurabi. The decision quotes from an 18th century American decision where punitive damages were awarded against the Secretary of State for an unlawful search of someone’s papers. (They apparently had different sensibilities then, although maybe not in the case of the Attorney General.)

The Court said that punitive damages were “wildly” accepted by American courts by the middle of the 19th century. At that time they were called “exemplary damages” a more favorable term, and were invoked in cases involving extraordinary wrongdoing. Their purpose was said to be to set an example for the sake of deterence. They were also said to compensate for intangible injuries that were not a part of the legal definition of compensatory damages. The court noted that the concept of compensatory damages has broadened so that this justification no longer applies. Today the Court said that punitive damages serve the purposes of retribution and deterrence and are reserved for outrageous conduct that is recklessly indifferent to the rights of others or otherwise deplorable.

In Nebraska punitive damages are barred entirely. In Washington, Louisiana, New Hampshire and Massachusetts they are permitted only when authorized by statute. (In Washington this nearly amounts to a bar on them as the legislature disfavors this aspect of the common law.) Two states have limited the type of rewards which may be recovered as exemplary damages and several have limited the amounts.

In an interesting and uncharacteristic detour the Court examined the laws of several other countries on the question of punitive damages and found that they were generally subject to tighter control than in American Courts.

The Court rejected the contentions of the tort reformers who claim that punitive damages are becoming extravagant. It stated that neither the amount of the awards nor the percentage of cases with punitive damages awards has increased over time. The Court said that the figures show restraint with respect to this type of award.

The Court though found fault in the lack of predictability of the amount of the awards and the lack of consistency in determining an appropriate amount. It announced that it would create criteria so that this element of damages would be rendered more predictable.

The Court noted that the criminal justice system’s sentencing function has the same purposes as a jury assessing punitive damages: retribution and deterrence. It found it noteworthy that the “indeterminate” sentencing system had been rejected and suggested that it would do the same thing for punitive damages awards, avoiding the “desserts of uncharted discretion.”

The court cited studies showing that the ratio of punitive damage awards to compensatory awards was less than 1:1, meaning that actual damage awards were on average more than the accompanying punitive damage award. Without much more discussion the Court decided that in maritime cases the limit on punitive damages would be the amount of the compensatory award.

Justice Scalia and Thomas separately concurred. Justice Thomas often seems to follow Justice Scalia’s views almost like a shadow. Scalia said that the reasoning here was correct but he disputes cases cited in the opinion that put a constitutional limit on punitive damages.

Justice Stevens dissented from the part of the opinion that imposed a limit on maritime punitive damages. His dissent shows the shallow, if not outright ignorant use of the term “activist judges,” Tort reformers often rant against judges usurping the role of the legislature and attribute that to “liberal judges.” Justice Stevens, sometimes called a liberal justice, opined that it is not the role of the Court to devise a formula to impose on juries. He said that this is a legislative function that ought to be reserved for Congress.

Justice Ginsburg, generally regarded as particularly thoughtful, shared Stevens’ aversion to the Court legislating damage limits. She pointed out that the majority acknowledged that there was no perceived urgency requiring the court to break from the common law tradition. She pointed out that the data that informed the decision showed that the traditional “abuse of discretion” standard by which punitive damages are traditionally reviewed functioned perfectly well. She also pointed out a number of unanswered questions about the decision.

Justice Breyer also filed a dissent, saying that he had no particular problem with the imposition of a ration like the one adopted but that it should not apply in extraordinary cases. He went on to point out the high degree of scrutiny that this award had received at the trial court level and what the Ninth Circuit Court called the “egregious” nature of Exxon’s conduct. As a special case exception he would have sustained the Ninth Circuit Court’s decision.

There are a number of interesting features to this case which I’ll discuss on another occasion. One quick observation. Broadly speaking punitive damages and criminal law address the same sort of conduct, as suggested by the Court in this decision. That is conduct that is deplorable or which recklessly endangers others or their rights. Punitive damages and sentencing have exactly the same purposes, to punish the guilty and to deter such conduct. You would think that people supportive of strong or harsh sentencing standards would support strong or harsh punitive damages standards. It turns out of course that generally speaking the people who support incarceration over rehabilitative purposes in sentencing favor the abolishment of punitive damages. There are racial and class distinctions between the two groups of defendants. Hopefully there is some other explanation for this apparent inconsistency.

McCain: a Balanced Budget?

McCain is focusing more on domestic issues and particularly the economy. He has announced that he will balance the budget and while their is some confusion about whether that would occur during the first term or the second term (which McCain pointedly has declined to speculate about until this moment), I can’t help but wonder how this is possible.

I have thought that this was a critical issue and was disappointed by McCain’s announcement that he would significantly increase defense spending while cutting taxes. This formula was followed by Reagan and resulted in deficit spending, by H. W. Bush and resulted in deficit spending. W. has dogmatically followed the prescription with historic deficits. McCain announced that he will follow Bush’s program, exept greatly expand the factors that lead to the deficit.

Now he’s saying that he will in four or eight years balance the budget. How?

The Senate Conservatives Fund: Soliciting Money From the Mentally Inactive

I just looked at the Senate Conservatives Fund website. This is fascinating stuff!

Remember, this site is the Republicans’ site for people who do not want to give money to the party because it has strayed from conservative principles. I was quite curious to see how they would do this.

It is certainly not intended to appeal to my disaffected friends. It’s that same extremist radio talk show format where you rant about a few easily identifiable matters that on the surface would not garner anyone’s support. There is a daily “pork report” identifying instances of government waste. This little entry focuses on relatively small items of waste in the federal government, but the site does not address any of the issues.

Because it is run by Republicans it cannot very well advocate for a balanced budget or balanced trade or any of those big picture things. Spending in the Mideast is of course out, as that would put the party in an awkward position. So they identify what they claim are instances of government waste. The “pork report” could be put on the website of almost any political party.

With respect to the pending mortgage crisis bill, it does not criticize anyone voting for it, as most Republicans are doing that. Instead it identifies the nine congressmen who voted against it.

There is a little list on the right margin that identifies “what conservatives are for.” The list though is little more than a string of meaningless buzz words, like “national security.” No explanation of the meaning of these terms is offered. Obviously, they are intended to mean whatever the viewer believes they mean.

This is for sure not a site for a thoughtful person who has issues with the Republican Party. It just omits reference to the party and contains little more than empty slogans.

The site identifies twenty close races for Senate seats and asks the reader to identify the true conservatives who are running. I could find no meaningful assurances about precisely how the donations that it solicits will be used.

Pundits and Advisers, Bill Krystol and Charlie Black

Today and yesterday a couple of statements by political gurus struck me as both repugnant and reflective of the brutal calculations that make up national politics.  Fist Sunday morning Bill Krystol said that, if Obama is ahead, Bush is more likely to invade Iran.  This among other things would be an :”October surprise” of the sort that could cause major voting shifts.  Krystol suggested that if McCain is ahead Bush might go from office quietly, confident that McCain would attack upon taking office.

The facile way these words tumbled off his tongue (and dribbled down his chin) shocked me.  He was talking about a decision that would cost hundred of thousands, perhaps millions, of lives.  A cloud of mystery remains on the question of why an attack in violation of international law is necessary.  The  2007 National Intelligence Estimate of course said that Iran had discontinued objectionable nuclear activity. making this talk disturbingly similar to the talk in 2003.

Today Charlie Black a very prominent adviser to McCain apologized for saying the assassination of former Pakistani Prime Minister Benazir Bhutto was an “unfortunate event” that had “helped” Mr. McCain’s presidential bid.  And that a terrorist attack on U.S. soil would be a big advantage to McCain.  It is probably just me but I find it unsettling to see how life is ground through political calculations.

This is not a Republican methodology; it’s a bipartisan approach.

Environmentalism and the Nazis

In the 1950’s communists were said to be infiltrating the government and the entertainment industry, as well as operating under several fronts. The McCarthy era ended when the demagoguery was challenged and the true charlatans were identified. While it lasted, though, it was a ticket to political prominence.

In the last few years some people have taken to identifying environmentalists as Nazis. This is actually done on national television and similar venues; we have almost grown to expect it in political campaigns. Such fear and hate mongering seems to be efficacious. You would think that it would backfire, but there must be more people swayed by it than repulsed.

On national media in 2006 Al Gore was compared to Nazi propagandist Goebbels and to Hitler for his success in publicising global warming. (It is a bit ironic that the people who diminish the Holocaust in this way tend to be Israel’s most zealous supporters.) On CNN Senator Inhofe actually described Gore’s testimony to the Senate Committee on the Environment and Public Utilities in that manner with the concurrence of Glenn Beck, the host.

In 2007 Fox News Radio continued the Gore/Hitler diatribe. CNN continued to transmit unbelievable comparisons to Hitler and Nazis. Glenn Beck recently said that Gore’s global warming campaign is like Hitler’s use of eugenics to justify exterminating 6 million European Jews.

With the new report on global warming just out, a report subscribed to about a dozen scientific groups associated with our government, doesn’t this treatment of science remind you of earlier, more primitive, periods of history?  Imagine: A world wide scientific conspiracy.  Really?

The hate and fear mongering diatribes are uniformly nothing more than name calling. There is no real rebuttal. Scientists picked “An Inconvenient Truth” apart pretty thoroughly finding some questionable facts and theatrics that suggested an unsupported conclusion. A UK judge found nine factual errors in the film.

But scientists and the British judiciary (one member anyway) agree that the film is rooted in good science and its overall message is supported by sound scientific theory and belief. This was known in 2007 and then Gore got a Nobel Peace Prize along with a U.N. panel of scientists investigating global warming. This, if anything, seemed to fan the flames of hate mongers.

This very odd discourse about environmentalism is probably the progeny of a pseudo-intellectual eddy in revisionist history. People are actually positing that environmentalism is a Nazi program, sort of like “Boys from Brazil.” This theory has been debunked by legitimate historians and even the people who are credited with originating this view disclaim any association with it.

A couple of years ago Jonah Goldberg’s book “Liberal Fascism: The Secret History of the American Left, From Mussolini to the Politics of Meaning” appeared. This book seemed to revitalize the “environmentalism is fascism” diatribe, although Goldberg claimed to have written nothing that was intended to suggest such a thing. The book sold well to mixed reviews. It was celebrated by conservative reviewers and panned by others.

The book’s thesis, behind all the pseudo-intellectual blather, is essentially Libertarian: Fascism means governmental regulation and liberalism means governmental regulation; therefore liberalism is fascist. Environmentalists want governmental regulation therefore they are fascists too. For proof just look at Nazi Germany where environmentalism was born. Nazis called themselves the national socialist party therefore socialists are fascists. Socialists are liberals. Very simple-minded stuff hiding in a lot of jargon.

This silly word parsing though unhinges people like those at the Building Industry Association of Washington who have made a habit of labeling anyone opposing their views as Nazis. In March their newsletter, in addition to more conventional name calling, called the Washington State Department of Ecology Nazis and lumped all environmentalists under that moniker.

This set off a local firestorm culminating in and Anti Defamation League demand for a retraction or apology. The B.I.A.W. of course refuses claiming the article (written by its storm drain columnist) is academically grounded. The B.I.A.W. is widely regarded as the Washington State Republican Party’s attack dog and neither the party nor any of its candidates has attempted to separate from this absurd propaganda machine.

The Circle is Unbroken, Now Let’s Move On.

We started off with people pretending to be shocked by the views of some on the Christian right whose endorsement McCain coveted. This seemed false to me as their views are old news and McCain has been courting the religious right for a long time now.

Then the media delighted at finding a few moments of video featuring Jeremiah Wright. A spectacle was made of this without any effort at anything but spectacle. That cycle seemed to end when the heavily redacted Clinton papers were released, showing among other things that poor Hillary wasn’t being entirely forthright with us in saying that she has always been against NAFTA. (Turns out she was right beside her husband, not in saying this was being forced on the administration by a Republican Congress, but in claiming that it was a good thing.

Now though, almost like an afterthought, Barbara Ehrenreich, has closed the circle by calling our attention to Clinton’s affiliation with a powerful right wing religious cult.

These pseudo-scandals bring out the dark side of politics and the worst aspect of the media. I hope this latest revelation permits us to refocus on policy.

The Front Fell Off

The Clintons have been masterful at playing the race card. Bill famously criticized Sister Souljah in1992 to garner votes from fearful whites without sacrificing his support by African Americans. Bill may have lost his touch a little though, as evidenced by his alienation of many, if not most, African Americans by belittling Obama’s win in South Carolina. Hillary is now taking a play at it through Geraldine Ferraro, who sounds a lot like Clarence Thomas on affirmative action. Obviously Hillary has abandoned all hope of garnering any of the black vote and is hoping to gain back the vote that was lost in Bill’s Sister Soulja comments so long ago.

Because of the inflammatory nature of topics and discussions among members of the Clinton Camp, they have taken to speaking in metaphores and using code words. A “tanker” is a campaign strategy that is floated out there. Clinton has many “tankers” out there. Geraldine’s tanker is a scandalous one and is not working as smoothly as the Sister Souljah ploy. In Clinton coded parlance “the front fell off.” Here is a secretly filmed discussion between members of Clinton’s inner circle.from www.hutton-web-desig posted with vodpod

Discussing the State Budget

Are you as confused as me by discussions about the state budget?  This year’s budget seems to be the lightning rod in the gubernatorial race.  The Seattle Times checked in saying the budget was too fat, pointing to the legislature’s lunatic desire to bring teachers’ salaries closer to the national average.  The Tacoma News Tribune called the house budget a “doozy” and portrayed state representatives as irresponsibly disregarding economic forecasts.  Bill Hinkle, a Republican from Cle Ellum, encapsulated the views of these dailies when he found biblical precedent and foresaw seven years of fiscal pestulence.

I find it difficult to assess these dire warnings and calls of alarm.  First how on earth can I evaluate economic forecasts?  I know that the Seattle Times called Gregoire’s previous budgets crazy and irresponsible because of economic forecasts but these budgets worked out wonderfully by all accounts.  The Times — obviously inspired by a sense of dignity and humility — called the success of Gregoire’s budgets blind luck, so the Times is right even when its wrong.

I’ve never been able to make heads or tails of of the state budget.  It’s numbingly long, loaded with indecipherable jargon and altogether daunting.  This has made me reticent about entering into discussions about the budget; I do not have any sort of picture of what it is.

Perhaps tiring of being pilloried by platitudes, the legislature is (I think) about to pass a bill which should make the budget more accessible to everyone.  SB 6816 passed the senate without a dissenting vote and on Thursday  was unanimously approved by the House Appropriations Committee.  This bill would create an accessible, searchable website containing the budget.  Eight states already have such a thing and several others are moving toward it.  The Washington Policy Center has a great article about this.