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Monday, December 05, 2016

The Trump Conning Tower

         Trump is a consummate con man. But is that so bad?     
            We were amazed that so many American voters couldn’t see through Donald Trump’s bluster. We likened him to the Hans Christian Anderson story, The Emperor’s New Clothes. He was called P.T.Barnum. Some even went so far as to compare his ranting tweets to hysterical speeches by Musolini or even Hitler.
            These analogies were apt. He was and is an authoritarian populist. He is megalomaniacal, egotistical. He is a carnival barker who plays the media to hype his celebrity image as brilliant deal-making billionaire entrepreneur and builder. Exposure of the truth of the myth behind the hype, which was belatedly dragged out by the media that created him, did little to change the minds of those who had already bought the product.
            They bought his pitch—he was a breath of fresh air in politics, who would shake things up by being a strong leader, who says what he believes. No amount of proof that the emperor was naked, or that his products were bogus, would cause the customers to spurn this product.
            We were shocked each time he made a claim against his opponent that actually applied to him. They were lying, picking on him; they had short fuses, had poor temperament; they were unqualified; they were criminals, sexists, racists. He had gall to accuse others of his own defects. Like Hitler claiming the Jews were the threat to world peace.
            His claimed prowess in business was contradicted by his bankruptcies, and the lawsuits by contractors. His claim to create American jobs was disproved by his outsourcing of products that bear his name. His refusal to show his tax returns undermined his claim to be charitable, a good citizen, even his claim of great wealth. (Need I mention his chutzpah in claiming to respect women?)

            None of that mattered to the voters who were anxious to swallow his bluster whole. Maybe the reason was that the other candidate / salespeople offered even more unattractive products, but the fact is that his advertising campaign hit the gullible customers in their angry, frightened hearts, if not their minds. He pandered to the worst in us, and his gamble paid off.

            Yes, he was a brilliant confidence man, who carried off the greatest swindle in American history. He took power, trampling the founding fathers’ claim of a democracy guided by an informed and educated electorate. He laughed all the way to the White House and to immortality.

            Those of us who were standing on the edges of the parade shouting vainly that the emperor was naked are terrified about what the inevitable comeuppance will do to the future of the nation. We are sure that if he carries through with the wrongheaded ideas he espoused in his ranting campaign, it will result in eventual ruin. 

            He cannot bring high paying manufacturing jobs back to the rust belt states that gave him his win: Pennsylvania, Ohio, Michigan, and Wisconsin. We are certain that his policy against Mexican and Muslim immigrants will be ruinous. We dread the changes his party will make to the Supreme Court and reverse progress in individual rights, including the right to health care and education.  We think we are right and he is wrong. We think given enough time, the American public will come to its senses and through the rascal out, along with the others in his party who kowtowed to him in to further their own ambitions.  

            But what if we are wrong? 

There have been other swindlers who sweet talked their way to power. We have three huge examples in my lifetime. In 1933, FDR was elected in the depths of the Great Depression, when the country was on the verge of revolution because of bank failures, 30%+ unemployment. 

There were calls for a military coup, dictatorship, a communist uprising. So, FDR, the crippled son of privilege, who was considered a second rate intellect and superficial glad-hander by professors and columnists, made his first speech on the Capitol steps. What is remembered from the speech is the phrase, “We have nothing to fear . . . but fear itself.” Huh?

            At the same time in Germany, things were even worse. The nation had been crushed twenty years earlier, losing millions of lives in a disastrous war, and then humiliated into signing a treaty that stripped its resources, put it into debt, placed all the blame for the world war on their shoulders. The Great Depression struck Germany even more harshly than here. Inflation was rampant, unemployment unstoppable.
            And Adolph Hitler is chosen to lead, by claiming that he—and only he—could bring his country back to its previous greatness. He presented himself as a savior, a powerful leader whose vision and faith was strong enough to carry the nation’s burdens. There was nothing in his past to support this except in his words, and the power of his rhetoric and self-belief. These had gathered an army of sycophants to adore him. 

Now the rest of the nation would yield to him. Opponents pointed out that he was a failed artist, architect; a rabble rousing race baiting lunatic, who wasn’t even German. None of that meant anything to those who were willing and anxious to believe his promises, even though to a rational mind, they seemed far fetched.

            By the summer of 1940, Hitler’s army had conquered Poland and France, and threatened to invade England. The smart money bet on victory within a few months. American public opinion bet that way, as did the American ambassador, Joseph Kennedy, and America’s hero flyer, Charles Lindbergh.
            So, England turned to a failed politician, whose ego and bluster had been rejected long before. Winston Churchill had been thrown out of the cabinet in 1915 after the Gallipoli fiasco. Since then, he had been an outsider who cared about preserving Empire and Crown, opposing communism and fascism. He wrote books, made speeches; he was an entertaining speaker and writer, and was ignored in parliament.
            By that summer, they gave him the reins of a government that most people expected to be forced to surrender; many thought Hitler would offer generous peace terms. (He had allowed a French government to govern over the southern half of that country, keeping his military forces in the occupied north.)
            Churchill would have none of this. His broadcast speech included eloquent words of defiance:

“. . .Even though large tracts of Europe and many old and famous States have fallen or may fall into the grip of the Gestapo and all the odious apparatus of Nazi rule, we shall not flag or fail. We shall go on to the end. We shall fight in France, we shall fight on the seas and oceans, we shall fight with growing confidence and growing strength in the air, we shall defend our island, whatever the cost may be.

We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, and if, which I do not for a moment believe, this island or a large part of it were subjugated and starving, then our Empire beyond the seas, armed and guarded by the British Fleet, would carry on the struggle, until, in God's good time, the New World, with all its power and might, steps forth to the rescue and the liberation of the old

                        Many saw this intransigence as foolhardy as well as illogical. “The Empire beyond the seas” he referred to consisted of colonies such as India that would have welcomed the defeat of their Imperial masters. As for the “New World,” meaning the USA and Canada, his hope was more a pipe dream than a real likelihood.

            It is true that great leaders in times of crisis often show the traits of swindlers: resolve in the face of reason, an aura of self-assurance that calms shaking nerves. They are master bullshit artists, salesmen of exceptional skill and courage. The 20th Century was a high point in the production of such figures. The advent of mass media allowed for The Big Lie to be pervasive. A power could control all major sources of information: news and opinion for the use of propaganda leading to a new concept: “totalitarian rule.”
            The tools of advertising and marketing that sold commodities translated well to politics. Democracies are particularly vulnerable to manipulation of the marketplace by clever minds. Polling, surveys, focus groups, testing, psychological profiling, all are useful in persuading large numbers of people to buy something they don’t need. 

They can go further—creating images that make bad people seem good, and dumb ideas seem brilliant. People can be made to buy things that aren’t good for them. They can be led to enthusiastically support policies that are, in fact, contrary to their own best interests.

            Celebrities have always existed in every culture: royalty, religious prophets, warriors, athletes, beautiful women, talented artists of all kinds. With the invention of pervasive media, promoters have been able to create the illusion of celebrity that makes it really happen. Barnum did it with his attractions; Ziegfeld did it with his discoveries just as the century began. For instance, he posed the singer, Anna Held, in a bath filled with milk and called in the photographers, scandalizing society but intriguing the public, who had to pay to see her perform.

            In the 21st Century, we have come further, first creating celebrities who are famous merely for being famous, and making millionaires out of them. With the worldwide scope of social media, international celebrities emerge overnight from obscurity to marketability for no greater talent than performing a stunt on a bicycle or getting hit in the face with a bag of feces.

            With all of this background, we should not have been surprised by Trump’s election as president of the United States, following in the footsteps of Washington (whose mythmakers had tossing coins over the Potomac, admitting to his father that he cut down a cherry tree), Lincoln (the simple frontier woodsman who was actually a wealthy corporate lawyer), FDR (who convinced the press to never mention the fact that he was physically helpless), JFK (who winked at the press so they wouldn’t reveal his many mistresses), or Bill Clinton (who swore that he never had “sexual relations with that woman,” because her mouth on his prick was didn’t fit his idea of “relations.”)

            Linclon supposedly said, “you can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time.” To which another wit might add, But if you work it right, fooling some all the time and all some of the time can make you a hero, a star, wealthy, . . . and / or a president.

Thursday, November 10, 2016

November 8, 2016, a date which will live in infamy.


Denial: check. Anger: duh! Bargaining: not fucking yet! Depression: yeah. Acceptance: NEVER!

For those of you devising strategies for the future, please consider the following. It was incomprehensible to us that people would vote for Trump in the face of overwhelming evidence that they should not. The answer lies in what I discovered in 45 years as a trial lawyer: most people act on FAITH, not EVIDENCE. They have "gut feelings," rely on "common sense" and beliefs that lead them to ignore facts, no matter how evident. Now, it must be said, liberals are not immune from this. (How else was OJ acquitted?) But generally, we believe in science, documented proof, data while they rely on prejudice (which just means pre-judging things based on bias). THESE THINGS ARE DEEPLY CULTURAL and inbred, encouraged by strong religious values. GOOD NEWS: they are weakening, very gradually, through education, exposure to OTHER IDEAS AND DIFFERENT PEOPLE. It has resulted in PROGRESS, but the opposition is stubborn. Good luck and be patient and persistent. OUT.

Ronald Reagan’s simple ideology allowed him to be certain and clear about every issue: lower taxes, secure defense, less government, American domination of foreign affairs, strict Christian morality and adherence to normative lifestyles.


I think it is hard to do: we don't work on faith rather than evidence. Our tolerance and reason demand temperance not passion. Our motto is often: "It depends." We don't hate the other, but want to understand her POV and feel their pain. Should we be more like them - Bernie wants a revolution. Is he wrong?.

Hey take heart. Trumps admin is DOA. He can't do what he promised. High pay manufacture jobs won't come back. He can't stop globalization. If he sends US troops to Mid East he will be Bush III. If Iran goes nuclear Israel will moan. Dismantling Obamacare will be a disaster (his favorite word). Corruption and incompetence will be rampant. The real lasting damage will be the Supreme Court which was always the real prize.

Work for 2018. Hard.

The blue collar rust belters bought a final con. Trump will get their high pay manufacture jobs back from Mexico? They are about to get another education - in Trump U!

Californians kept the death penalty in fact voted to expedite executions Then celebrate by getting high on weed.

An old man's survival advice: the last time this sort of thing happened (1968-1992) - we found refuge in family and friends who share our values. Wish the same now.

The white uneducated racist sexists won their country back. Lets see how they make it white and dumb again.

Monday, October 24, 2016

One Person ... Five Votes

This election is important because of the death of Antonin Scalia and the aging of other members. The balance of the Supreme Court of the United States (SCOTUS) is at stake. Both sides have made this a campaign issue, citing the controversies that cause the most concern among passionate voters: abortion, the 2nd Amendment, minority rights, criminal justice. 

An issue that is never mentioned is the most important. That involves interpretation of Article I, section 2 as it relates to the right of the People to vote in elections.

In 1982, SCOTUS, in Karcher v. Daggett, struck down a New Jersey redistricting scheme. The Court ruled that the 14th Amendment Equal Protection Clause should apply to the right to vote, affirming the principle of “one person, one vote.” 

The NJ plan was discriminatory to minorities by reducing their power vis a vis districts that had a non-minority majority.

The precedent was followed in Davis v. Bandemer, in 1986. SCOTUS decided that Indiana’s redistricting plan could be challenged in court, but the justices split on the standards to apply to the practice. 

The case was complicated by the contradictory briefs sent to the court. In Indiana, the minority Democrats objected to Republican gerrymandering that watered down Democratic votes. But an amicus brief was filed by Democrats in other states—including California, where Dems controlled the Legislature and hence the redistricting—urging the court to stay out of politics. 

The members of the court agreed that the issue was one that should be presented to the court, but had trouble deciding the appropriate standards for deciding constitutionality. Justices White, Brennan, Marshall, Blackmun, Powell and Stevens agreed on parts of the majority opinion, but not others. C.J. Burger, O'Connor, Powell all filed separate opinions concurring, dissenting, joining - in different parts. 

Then, in 2004, in Vieth v. Jubelirer, the court ruled that gerrymandering was a political issue and not a fit subject for the courts. They upheld Pennsylvania’s plan that eliminated two Democrats from office in the next election, by redrawing districts after the state lost 2 seats in the 2000 census.

The plurality opinion was written by Antonin Scalia, who denied that he was overruling the precedents, merely following "original intent." He was joined by C.J. Rehnquist, Sandra Day O’Connor, and Clarence Thomas.

Anthony Kennedy concurred, providing the 5th and deciding vote. Kennedy agreed with Scalia that the issue should not be “justiciable” because he couldn’t think of a way to establish standards for defining when gerrymandering was unconstitutional, but he didn’t fully agree with Scalia, hoping that some future court could come up with acceptable standards.

The dissenting votes in favor of striking the Pennsylvania plan were J.P.Stevens, David Souter, and Stephen Breyer, and Ruth Bader Ginsburg.

 And that is the current law.

In the “off-year election of 2010, when Democrats were numbed by the effects of the 2008 crash and the cries against the bail-out and the bruising fight of the ACA (enacted in March). Republicans elected many governors and state legislatures. It was a disaster for Democrats and democracy because it was a Census year, when redistricting is required because population shifts cause losses or gains of seats in the House of Representatives.

The national Republican Party anticipated this and were ready with computerized plans for gerrymandering Democratic voters out of any possibility of controlling the House. Districts were redrawn so that all Democrats were packed in one district. Other districts were drawn so that any remaining Democrats were outnumbered by Republicans.

Of course this is made possible because African-Americans make up a large share of Democratic votes. Minority communities are often densely populated, while minorities are excluded from suburbs and rural areas. That makes it easy to take a county with a gross majority of Democratic votes result in more Republicans in Congress than Democrats.

California eventually tried to solve the confusion that resulted in radical redistricting every time the Legislature shifted power in the volatile population state. California often had Republican governors ready to veto any plan that gave Democrats an edge.

California created a Redistricting Commission that is nominally impartial, or at least bipartisan. In other democratic countries, this sort of plan has been in place for many years.

So, a new president will nominate one or more judges, possibly changing the balance of the court. Since 2004, only Breyer and Ginsburg on one side, and Thomas on the other side, remain on the court.

If the court gets to decide a redistricting case, will it be willing to impose a standard for evaluation of redistricting plans based on a principle of Equal Protection, and one person, one vote?

And then . . . they could deal with the Voter ID laws that are clearly aimed at reducing the minority vote.

Sunday, October 23, 2016

Did the democratic process work this time? Yes / No / Maybe. ...

Argument: The democratic process worked this time.

            Despite the messiness of the political process, this election cycle has done what it is supposed to do. It allowed voters to focus on issues that are at the core of democracy and governance. And it may – just may - have alleviated the biggest problem of our democracy: intransigent polarization that prohibits compromise.

            There will always be a sizeable percentage of the electorate that opposes the other side. There are about 120 million votes likely to be cast this time. (That is about 50-60% of the potential number of voters). Even in the most lopsided elections, a presidential landslide in the popular vote means getting 5% more than your opponent.

            In past wipeouts, the losing side gets 38-40% of the vote — that includes FDR in 1932, LBJ in ’64, Reagan in 1984.
            Since the 1990’s, losers average more than 45% of the vote; the margin of victory averages less than 5%.
            The result has been an electorate divided down the middle on almost every issue. That means gridlock . . . divided government, refusal to compromise, divisive rhetoric. Do nothing Congress . . . high disapproval ratings by everyone on all sides.

Although the media has found some who hate both alternatives, and some who can’t decide, and some who don’t care . . . the truth is that there is a clear choice this time and the choice might make a real difference in our future.

This election may move the needle:

            By his extreme rhetoric, Trump did us a service: he crystalized for many voters where they drew the line in their feelings about core democratic values. And many abandoned him and crossed the line to the other side . . . or at least retreated to the sidelines.
            A few Sanders followers did the same.  

            Trump may lose (and Clinton win) by a landslide. His base of supporters may prove to be smaller than feared. If so, Can this break the deadlock that causes dissatisfaction with government? Here are the reasons why it might.

            Trump’s small cadre of surrogate spinners hope for a revival of the “silent majority” that backed Nixon to victory against the “elite liberal media” and “unwashed protesters” of the time. But their time ended forty years ago. The “majority” is now reduced to a dwindling minority, overwhelmed and enervated by the rapid social changes they couldn’t stop.

            There are far fewer voters who are truly undecided by this time. Our voter turnout is always low compared to other countries. We take our democracy for granted and we fail to educate and inspire vast chunks of the population enough to take the time to pay attention. There is a direct correlation between education and voter turnout (although college students seem to be impervious to any inspiration to vote in numbers comparable to the grandparents).

            But the lengthy and loud process that has seen large vocal crowds at events, and high viewer ratings has been reflected in arguments around water coolers, at parties and family dinners all over the country for many months.

            More people paid attention in this cycle, continuing a trend that began with Obama in 2008. Sanders expanded the base of small donors that Obama had begun. And even Trump benefitted from a base of donors who might have given to evangelists instead.

Clear choices were offered this time. Despite the cries of those who complain that neither candidate deserves their vote, the fact is that a vast majority of people have seen enough differences between them to make up their minds to vote for one of them and against the other.

The primaries did the job, reflecting the mood of the people:

- In the Democratic primary, there were two clear choices. Sanders urged a more radical progressive agenda. Clinton’s program suggested more incremental progress. Generally, the perception of the radical vs. the moderate was correct. Clinton supporters argued that Sanders was proposing unrealistic, unattainable goals. Sanders people distrusted Clinton’s coziness with the established powers that they felt needed to be fought.
         These two visions and notions were rather sharply drawn and gave voters enough information to at least think seriously about their own preferences. They gave Clinton a solid win while forcing her to strongly consider the issues that Sanders raised.
            That is how it is supposed to work.

- The Republican primary exposed the weaknesses of the party’s established leaders. The Tea Party movement that emerged in 2010 to elect a sizeable cadre in Congress and took over 30 state houses showed disillusion with the failure to achieve unrealistic promised goals.

            The frustrated Right appreciated Trump’s snarly ridicule of those elected Republicans who failed to overthrow Obama and his far left agenda: Jeb Bush, Marco Rubio, Chris Christie, John Kasich, Paul Ryan, Mitch McConnell, John McCain, Mitt Romney – all pitiful compromisers in their view were victims of Trump’s attacks.

            From the perspective of conservative voters, they controlled the Senate and the House, the Supreme Court, and state governments. Yet, they could not prevent socialized medicine (Obamacare), destruction of traditional marriage, and the flow of Hispanics, drugs, and Islamic terrorists. Both Bush presidencies were disappointments: the federal government grew, the economy shrunk, jobs were lost, wars were disastrous, our enemies prospered.  
- A plurality of Republican voters chose a populist, narcissist, chauvinist, authoritarian non-politician billionaire to voice their bitterness at the changes they could not stop.

            The immigration / terrorism issues that Trump made the center of his campaign from his first speech stimulated the portion of my generation that lost every battle of the cultural wars of the last 60 years, particularly equal rights for African Americans, women, and homosexuals.

            Projections are that America in the near future will no longer be mostly white. Diminishing white male Christian dominance is a subject for panic for that demographic.    

            This may be a last stand for that aging bloc.  

- Exposure of Trump’s flaws during the long, long campaign has peeled away huge chunks of Republican voters.

            First, his vicious attacks on primary opponents eliminated Bush supporters, Kasich backers, even Cruz followers. Koch Brothers and other traditional GOP deep pockets backed off. Of course, he negated any possible inroads into the Democratic hold of any minority voters.

            He lost support from GOP security / military experts with his fixation about Putin, his impulsive shrugs about nuclear proliferation, and his rash discounting of NATO as if it was a losing business. His cruel sniping at “loser” McCain as a captive, and at a Muslim father and mother of an American war hero offended many patriotic veterans who should have been his most loyal backers.

            Of course, his biggest loss is among almost all women: whatever age, ethnic identity, working or not, educated or not, Christian or not.

            He couldn’t hide his blatant sexism.
            It undermined any claim he might have made of moral superiority over the Clintons.   
        It exposed his outdated notion of manhood, one that even conservative women with hard drinking dirty joking husbands could not abide.

The choice between Trump and Clinton becomes very clear.
 The debates produced a clear result. All polls showed that voters favored Clinton by about 2 to 1. That is an enormous margin, especially in a country that has been so divided for so long.

The debates received record viewing on all media sources for all age and gender groups. In a campaign where fears of enthusiasm gaps and voter suppression are rampant, this fact is encouraging.

Of course, Trump is the main reason for the heightened public fascination with the election news and entertainment. He is his own reality show, soap opera, talk show, stand-up comedy act. He moves the ratings needle for cable infotainment like no one. He has received billions in free airtime from them, and they probably think it was well spent.

The possible outcome:

- Trump may lose the popular vote and electoral college vote by a landslide.
- If Clinton wins big, she may assume she has a mandate for her program.
             BUT: Bill Clinton thought he had a mandate for change in 1992. He had urged universal health care in the campaign and when he won, he thought it was what the voters wanted. He spent precious political capital losing that fight that was led by Hillary.

- Democrats may win control of the Senate, and reduce the GOP House majority.

            BUT: The seats Republicans lose in Congress will probably be those of former “moderate” or at least less extreme conservatives (like Ayotte of N.H.). This could stiffen the intransigence against any compromise.

The optimistic view:

Proof that the Tea Party core is not as potent as it was thought to be (just as the past movements like Christian Coalition showed weakness) may embolden Paul Ryan to compromise on some issues.

Clinton’s centrism (given a mandate) may permit her to deal with Ryan, McCain, Graham, Flake, and a few other rational members of the loyal opposition. The first and most doable issue might be immigration reform. Borders and a path to citizenship can be worked out in a comprehensive form without frittering all her capital.

            The advantages to both sides of settling this issue once and for all are so obvious that it seems that it should be one issue that could be decided, once Trump’s extreme rhetoric is relegated to an impotent minority on the extreme right.

            Whether Ryan has the courage to risk alienation of even this diminishing constituency is an open question.

Once having compromised on this issue, he will have to appear tougher on others, but he can argue a net gain by re-claiming a portion of the growing Hispanic vote for the party.

Another area ripe for compromise is criminal justice reform. There is a consensus for change from the Draconian sentences and prison overpopulation, a return to the emphasis on rehabilitation, and drug programs. Legalization of marijuana is on the table – if the state experiments in Colorado and California prove regulation and taxation to be feasible

Clinton will face a challenge from her left on important economic issues: Taxes, corporate regulation, trade. The wish list includes college financial relief.

            Republicans will fight these changes, but probably with more traditional arguments. The Tea Party intransigence that forced government closures proved to lose votes for the party and the election gives rational leaders the stronger argument.

            Ryan, the self-proclaimed Budget maven is going to want to fight for balanced budget, reduced debt, and the other traditional GOP issues. Warren and Sanders are going to fight the good fight in Congress over this and Clinton is going to have to figure what she can get away with.
            It will be a stern test of Clinton’s claimed negotiation skills and experience.

Foreign Policy

In foreign policy, Trump’s contribution has been to crystalize the public’s recognition of Putin as a real threat to American interests in the middle east and eastern Europe.
            The cyber war with Russia will heat up and a consensus will emerge to seal the leaks for security reasons.

            Clinton will have trouble with her left on foreign trade treaties and humanitarian efforts in the Middle East and Africa.

            By inauguration day, the Mosul offensive may have progressed well, pushing ISIS out of power in the city and reducing the “caliphate” to a shell of its former pretensions. Syria will be the next battleground and provide the biggest foreign policy challenge to the new administration.

            The foundation laid by Obama: Shiites, Kurds, Syrian rebels, Turks, and US technology, air power, advice, coaching, intel, rangers . . . rather than massive US ground forces . . . should allow Clinton some leverage against Assad & Putin in negotiations for an end to the crisis.

            Clinton will have to deal with North Korea, Israel, and unforeseen crises. Whether she will prove to be the hawk / interventionist that liberals and libertarians fear or whether she will be a wise consensus builder, we can’t tell.

            The point is that the voters this season were presented with clear choices and enough evidence to decide their future.