Thursday, December 31, 2015

Expect Trump to Move Sharply Left if He Wins GOP Nomination

I ran across an article a few days ago in which the author made the argument that Trump could win the general election and the route to victory would be a likely sharp move to the left once nominated.  Unfortunately I've been unable to relocate the article.  I agree with the author's sentiment, however.

On issue after issue, Trump has shown himself to have very fluid views, changing those views (mostly) from liberal to conservative as he campaigns to win the GOP nomination.   For example, Trump has been for higher taxes, single payer health insurance that covers everyone, and has declared
Donald Trump
that he is "very pro choice" even willing to support partial birth abortion.  So many of my conservative friends have bought hook, line and sinker Trump's claim that his views have changed on a wide assortment of issues.  (Although I don't think he's ever refuted his support of a single payer health insurance, which would be a huge expansion of Obamacare.)  Trump's liberal political history has even won him the applause of liberal talk show host Joy Behar.  (See: "Joy Behar Touts Trump’s Liberal Views: ‘He Agrees With Bernie")

The thrust of the original article I referenced is that Trump, by moving sharply to the left, would have a chance of winning the general election against Democrat Hillary Clinton who is seen as very close to Wall Street.  Trump, riding a wave of populism, could make the case he is against the abuses of corporate America and for working men and women.  In essence, Trump would become the Republican Bernie Sanders, while maintaining his anti-immigration, anti-Muslim, anti-Establishment populist views. 

Would conservatives currently supporting Trump abandon the New York businessman if he reverts back to his pre-election liberal self?  I don't think so. There has been a sort of cult of personality built up around Trump. Even when Trump has slipped up and expressed extremely liberal views during the campaign (which he often flipped on later), his supporters seem completely unwilling to holding him accountable.  So many of my conservative supporter friends start off with their defense of Trump with "What he really meant to say..."   It is not clear that anything short of Trump admitting he hung out with Bill Cosby trying to score women by giving them drug-laced drinks would derail his supporters from backing him.  Actually I'm not sure that would either.

I always thought Trump would revert to his former liberal self once winning the general election.  Upon further reflection, I think that is wrong.  I think he will revert to his liberal views once nominated.  Imagine Republican nominee Trump running to the left of Hillary Clinton, while retaining right-wing, anti-Establishment support.  That is a recipe for a general election win and for a conservative loss.   Of course, conservatives will have already lost the election if Trump is nominated.

Saturday, December 26, 2015

The Referendum Path Out of the Indiana GOP Quagmire Over LGBT Civil Rights Protections

In November, the leadership of the Indiana General Assembly announced it would be supporting a "compromise" bill introduced by Sen. Travis Holdman (R-Markle) that expands the state's weak civil rights law to include discrimination against members of the LGBT community.  The "compromise" is that the bill as introduced purports to protect the freedom of religious organizations which view homosexuality as a sin and same sex marriage as contrary to religious tenets.  Churches, for example, would not be obligated to host same sex marriage in their facilities.

It did not seem to matter that the GOP-backed bill thus far offers no protections for the religious freedom of individuals, LGBT rights supporters immediately assailed the religious protections in the bill.  Meanwhile conservatives, especially those in the evangelical community, attacked the bill as opening the door to discrimination against them due to their religious beliefs.  For the first time, for example, the Christian owners of a restaurant in Indiana could be obligated by state law to set aside their religious faith to cater a same sex wedding if the bill passes. 
Sen. Travis Holdman

Evangelicals, already furious with Governor Pence and Republican legislators over the "fix" to the Religious Freedom Restoration Act, are on the verge of full scale revolt against the party going into the 2016 elections.  This comes on the heels of the Tea Party wing of the party also being angry at Pence for abdicating a number of conservative positions while in office.  The real danger to Pence's re-election is not people voting against him for RFRA; rather it is his former Tea Party and Evangelical supporters staying home on Election Day.  Without their enthusiastic backing, it is doubtful Gov. Pence can be re-elected.

Key Republicans in the Indiana General Assembly have somehow managed to convince themselves that standing up for religious freedom is bad politics.  Of course, GOP presidential candidates, who have to be more attuned to the public's views than anyone, have reached the exact opposite conclusion.  None of those candidates support the position taken by Indiana GOP legislative leaders.  Although Governor Pence has not yet taken a position on the bill, it certainly would not have been introduced and supported by Republican legislative leadership without his assent.  Nonetheless, Pence will probably hold off until after the filing deadline for Governor to enunciate his position. Given the current alienation of Evangelical and Tea Party Republicans, Gov. Pence should be very concerned with a Mourdock-like primary challenge from his right flank.

Previously I've argued that Indiana Republicans need to stop playing defense and aggressively support religious freedom, framing the issue exactly in those terms.  Instead they've sat back and allowed the LGBT community to define the debate as one simply about civil rights and fairness.  While the attack on RFRA bill by all credible accounts was an unexpected ambush, the surprise factor has long passed and Republican leaders have had a chance to regroup and rethink their disastrous approach to framing the issue.  However, instead of a new aggressive approach focusing on religious liberty, Republican legislative leadership has decided to take the Prime Minister Neville Chamberlain approach of appeasement.  They believe that the LGBT community, having scored a major PR battle in 2015, will be satisfied with this compromise civil rights legislation instead of going for yet another victory.  That's naïve thinking.  Very naïve.  The LGBT community has no reason to compromise when GOP legislative leadership begins the negotiations by waving the white flag.

Fortunately for the Governor and GOP legislative leaders there is a way out of the political quagmire.  Put the issue up for a referendum.  While historically Indiana's legislature has strongly opposed referenda and other forms of direct democracy, the law does allow the legislature to authorize a referendum.

It is unlikely that, with evangelicals and other conservatives mobilized by a state-wide referendum on the expansion of civil rights protections, that the measure would pass in conservative Indiana.  After all, such a measure failed in liberal Houston even though the LGBT rights measure had the full support of the lesbian Democrat Mayor of that city, key government officials and big business.  A referendum would allow Republican legislative leaders and Governor Pence to escape political consequences, both the phantom concern of a backlash from the LGBT-rights supporting public if they don't support the expansion and the real backlash they face from conservatives if they do.

A referendum would have another effect. It would drive conservatives to the polls in November.  That increased turnout could be the catalyst needed to help re-elect Governor Pence and to keep the GOP legislative supermajorities from being significantly weakened.

Since authorizing a referendum makes sense, I doubt our legislature will do it.

Tuesday, December 22, 2015

2016 Presidential Election is Over for GOP Establishment

While GOP outsider Donald Trump continues to expand his lead, political pundits continue to float among the Establishment candidates to identify who will ultimately win the nomination. Yesterday it was Florida Senator Marco Rubio.  Today we're told that New Jersey Governor Chris Christie could do well in the first primary in New Hampshire.

From looking at the polling, I'm convinced that the notion that an Establishment GOP candidate can
Sen. Ted Cruz
win the nomination is wishful thinking.   The polls from September to today are remarkable consistent.   They show three things:  1)  The anti-Establishment sentiment in the GOP runs generally between 60%; and 70% of the total 2) the support for an anti-establishment candidate is growing; and 3) that changes to the polls simply involve a shuffling of support within the anti-establishment and establishment camps. Very few voters are crossing from one camp to another and, of those few who do, it is the anti-Establishment camp which is gaining voters. 

Defining the anti-Establishment vote as those who support Donald Trump, Ted Cruz, Ben Carson, Carly Fiorina and Rand Paul let's take a look at what percent of Republican voters are supportive of those candidates versus those who Establishment:

Fox News
12/17    72%
11/19    65%
11/3      67%
10/12    65%
9/22      63%

12/1    70%
10/17  62%

ABC/Washington Post
12/13   68%
11/19   69%
10/18   67%

12/17  64%
11/17  65%
10/4    59%

I continue to contend that the only candidate out there who can stop a Trump nomination is Texas Senator Ted Cruz.  A Monmouth poll released today shows the race 28-24 in favor of Trump over Cruz.  I personally don't think it's that least not yet.  While Cruz is not the strongest general election candidate for the Republicans, he certainly is much better than Trump.  According to the Quinnipiac University poll, 50% of the people responded they would be embarrassed by having Trump as President.

Apology to Readers Wishing to Comment

A few people recently have tried to post comments on my Ogden on Politics blog.  Unfortunately I'm having issues with the moderating function in which I approve those comments and have not been able to post them.  It might take a few days to sort things out.  I apologize for the issues and appreciate your patience in getting them resolved.

Thursday, December 17, 2015

Donald Trump Criticizes President Obama's Unconstitutional Executive Orders While Trumpeting His Own

Last weekend, Republican candidate Donald Trump blasted President Barack Obama's use of executive orders to bypass Congress...and the order to enact his agenda.  CNN reports:
Donald Trump slammed President Barack Obama on Saturday over his use of executive orders to accomplish his policy objectives, just two days after proposing his own executive order.
Speaking with South Carolina's attorney general during a question-and-answer forum,
Donald Trump
Trump vowed that if elected president, he would repeal Obama's executive orders allowing undocumented children and parents to remain in the U.S. The state's attorney general, Alan Wilson, is suing the president over those executive actions along with 25 other states.
"I don't think he even tries anymore. I think he just signs executive actions," Trump said of Obama, before pointing to the U.S. government system of checks and balances.
That's the way the system  is supposed to work. And then all of a sudden, I hear he tried, he can't do it, and then, boom, and then another one, boom," Trump said.
But Trump apparently doesn't practice what he preaches.  Just days earlier, the New York businessman indicated that as President he would issue an executive order that would mandate the death penalty for anyone convicted of killing a police officer:
One of the first things I do, in terms of executive order if I win, will be to sign a strong, strong statement that will go out to the country -- out to the world -- that anybody killing a policeman, policewoman, a police officer -- anybody killing a police officer, the death penalty. It's going to happen, OK?" Trump said Thursday in Portsmouth, New Hampshire where a New England police union representing about 4,000 law enforcement officials endorsed him.
Federalism much?  Such an order would be blatantly unconstitutional.  Most murderers, including killing of police officers, are prosecuted through state courts using state criminal law.  Federal officials have no right whatsoever to intervene in those prosecutions to mandate harsher punishment. Further, nineteen states have decided to ban the death penalty in their states.  Our Constitution allows that.  What it does not allow is the President of the United States to dictate how states are going to prosecute crimes in their jurisdictions.

It is unclear that a President Trump would respect the Constitution any more than President Obama has.  Given Trump's apparent lack of a high school civics level understanding of how our government works, I fear he actually represents a greater threat to the Constitution and our federal system than what we've experienced the last seven years.

Monday, December 14, 2015

Scalia Is Right That Racial Preferences Often Lead to Academic Mismatches Which Hurt Minority Students

The Wall Street Journal yesterday published an excellent op-ed piece entitled "Scalia Was Right About Racial Preferences."   The title alone will undoubtedly set my liberal friends into a frenzy.  From the article:
With the regularity of Old Faithful, honest remarks on racial matters these days are followed by geysers of liberal indignation and outrage. That is what greeted Supreme Court Justice Antonin Scalia’s suggestion last week that less-qualified black students might be better off at less-selective colleges.
During oral arguments in Fisher v. University of Texas at Austin, a case concerning race-

Justice Antonin Scalia
conscious college admission policies, Justice Scalia cited research that shows how racial preferences can handicap some black students by placing them in elite schools where they don’t have the same credentials of the average student and struggle academically.  
“There are  those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school—a slower-track school where they do well,” said Justice Scalia. “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
Liberal public figures and media types promptly denounced the remarks. Democratic leader Harry Reid, ever the statesman, stood on the Senate floor Thursday and accused Justice Scalia of endorsing “racist theories.”
We live in a political  environment where the intent of a policy aimed at helping minorities is all that matters; questioning the policy’s actual effectiveness is tantamount to racism....
Liberals simply ignore the fact that Scalia is making an academic argument that's been around for more than half a century, an argument with which even many liberal academics who have studied affirmative action agree.  The article continues:
A 2012 book, “Mismatch,” by UCLA law professor Richard Sander and legal journalist Stuart Taylor Jr., illustrates why Justice Scalia’s concerns are warranted, and the book has helped revitalize the discussion over affirmative action’s efficacy. But it is worth noting that such concerns have been voiced by conservative and liberal scholars alike and are as old as the policies themselves, which date to the late 1960s.
Nearly 50 years ago, Clyde Summers, a professor at Yale Law School and longtime critic of labor-union discrimination against blacks, explained how preferential admissions policies at elite law schools like his own damaged the educational prospects for black students not only at Yale but also at less-selective schools. When a top-tier school like Duke lowered the admissions criteria for a minority student who met the normal admissions standards for a second-tier school like North Carolina, he noted, the latter institution was left with a smaller pool of qualified applicants and forced to begin admitting students who would be a better fit for a third-tier school, and so on.
“In sum,”  wrote Summers (who died in 2010), “the policy of preferential admission has a pervasive shifting effect, causing large numbers of minority students to attend law schools whose normal admission standards they do not meet, instead of attending other law schools whose normal standards they do meet.”
In response to his fellow liberals wanting to hang Scalia in effigy, Columbia University Professor John McWhorter responded with an academic review of the evidence supporting Scalia's line of questioning.  The piece "Actually, Scalia had a point," was published on yesterday
Those who  consider themselves on black people's side are having a field day dismissing Justice Antonin Scalia as a racist. His sin was suggesting that black students admitted to the most selective institutions might perform better at somewhat less selective institutions where instruction is paced more slowly.
I don't usually agree with Justice Scalia's perspectives, but we are doing him wrong on this one. Scalia didn't express himself as gracefully as he could have. No one could suppose that anything like all black students find the pedagogical pace at top-level universities overwhelming.
However, Scalia's comment stemmed not from random intuition but from research showing that a substantial number of black students would do better -- and be happier -- at schools less selective than the ones they are often admitted to via racial preferences.
The reading public's response to Scalia's point shows that few have any idea of this research or assume it was done by partisan zealots. An intelligent discussion of the Fisher v. University of Texas case now before the Supreme Court requires a quick tour of the facts.
... The question [is] not whether black undergraduates were regularly admitted with lower grades and scores, but whether this was appropriate. Also, the very fact of studies addressing what is called the "mismatch" between their dossiers and the schools they are admitted to demonstrates that the mismatch, itself, is real.
Now, at this point, many object that despite the mismatch, the students excel nevertheless. Here is the rub: the data is in, and in crucial ways and too often, they do not.
At Duke University, economist Peter Arcidiacono, with Esteban Aucejo and Joseph Hotz, has shown that the "mismatch" lowers the number of black scientists. Black students at a school where teaching is faster and assumes more background than they have often leave the major in frustration, but would be less likely to have done so at a school prepared to instruct them more carefully.
UCLA law professor Richard Sander conclusively showed in 2004 that "mismatched" law students are much more likely to cluster in the bottom of their classes and, especially, to fail the bar exam. Meanwhile, Sander and Stuart Taylor's book argues that the mismatch problem damages the performance of black and brown students in general.
Yet the discussion of affirmative action implies that the choice is somehow between Yale or jail. But here's what happens on the ground. At the University of California, San Diego the year before racial preferences were banned in the late '90s, exactly one black student out of 3,268 freshmen made honors. A few years later after students who once would have been "mismatched" to flagship schools UC Berkeley were now admitted to schools such as UC San Diego, one in five black freshmen were making honors, the same proportion as white ones.
Our national conversation on racial preferences is underinformed and mean when founded on an assumption that anyone who seriously questions racial preferences is naive at best and a pig at worst. Affirmative action is a complex matter upon which reasonable minds will differ. With the well-being of young people of color at stake, we can't afford to pretend otherwise.
It's a shame that so many liberals would rather scream "racism" than honestly address Scalia's point about academic mismatches which is supported by so many studies.  It makes you wonder if they actually have any real interest in helping minorities rather than simply score political talking points.

Saturday, December 12, 2015

Marion County GOP Flies White Flag of Surrender; Republicans to Meet to Elect Lobbyist As County Chair

In a story followed closely by Gary Welsh of Advance Indiana, next week Marion County Republicans will meet to coronate the hand-picked successor of County Chairman Kyle Walker.  That person is Jennifer Ping, a lobbyist who works at Democratic Mayor-elect Joe Hogsett's law firm, Bose McKinney & Evans.  In a story from earlier this week, Welsh points out the problems that a previous Marion County GOP chairman ran into when it came to lobbying while also chairing the county organization:
Jennifer Ping
History has a way of repeating itself. Former State Rep. John Keeler tried serving as the county chairman while a partner at the Baker & Daniels law firm when Bart Peterson served his two terms as Indianapolis mayor. Real Republicans were disenchanted by Keeler's hands-off approach in dealing with Peterson as the leader of the opposition party. County Republicans would not learn until after he had served as chairman for several years that Keeler had signed a gag order with his law firm agreeing not to criticize Peterson in his role as Republican county chairman. That was a condition Peterson placed on the law firm under the terms of its engagement to represent the City on various legal matters.
Welsh follows up this morning on the endorsement of Ping by numerous Republicans. It is a shame that those Republicans didn't push instead for a real reformer who would make structural changes that would rejuvenate the Marion County GOP. Ping, very much an insider, is unlikely to make those changes. Further, given her employment, she is also unlikely to be aggressive on taking on Democrat Mayor Hosett, which should be the primary job of the Marion County GOP Chair.

Following the 2015 Indianapolis municipal election debacle (at least for Republicans), GOP activist Marcus Barlow wrote an excellent piece on the INForefront blog assessing the problems with the message of the Marion County GOP:
We cannot continue to run as democrat-light, and expect the voters of Marion County to trust us with leadership ever again. What do I mean by democrat-light? As a Republican, I wish I could’ve read at least one article where it didn’t describe the Republican candidate as not being much different than the Democratic candidate. Social issues aside (although, as a social conservative, my county party gives me no indication that they even care about my vote, which is why many decided to stay home), even on economic issues, Republican after Republican was in favor of more government regulation, increasing the liability of businesses, and more spending. Our argument shouldn’t be: We will increase the size of government too, just a little bit less than our opponents.
We need to be bold. Every Republican should take a refresher course in conservative political theory and they’ll find that it holds solutions for problems at every level. The conservative movement needs to be revived in our county, and it should be the backbone of our policy. Good policy will lead to good messaging and good messaging will lead to good politics. ...
Barlow is exactly correct.   In addition to structural problems with the Marion County GOP, there exists the problem that at every turn Marion County Chairman Walker  advocated for Indianapolis Mayor Greg Ballard's agenda of higher taxes and corporate welfare. Not only did Walker use his position to advocate fiscal liberalism, he also pushed a liberal social agenda, which included attacking Governor Pence for his support of religious freedom.  Walker and Ballard provided conservatives no reason to turn out to vote this past November.  The result was a landslide for Mayor-elect Hogsett and the election of a Democratically-controlled council.

Thursday, December 10, 2015

Trump Expands Lead in Latest CBS-NY Times Poll While Cruz Quadruples His Support

A CBS/New York Times Poll released today shows New York businessman Donald Trump greatly expanding his lead while Texas Senator Ted Cruz quadrupled his support.  In the poll, Trump leads with 35% of the vote followed by Texas Senator Ted Cruz at 16%, physician Ben Carson at 13%, and Florida Senator Marco Rubio fourth at 9%. 

Comparing apples to apples, the last CBS-New York Times poll, which was taken between October 21-25, had Carson in the lead with 26%, Trump at 22%, Rubio 8%, and former Florida Governor Jeb
Donald Trump
Bush and businesswoman Carly Fiorina at 7%.   Cruz had only 4% in that poll, tied with Kentucky Senator Rand Paul, Ohio Governor John Kasich and former Arkansas Governor Mike Huckabee. 

In the most recent poll, Paul has 4%, while Bush, Kasich, New Jersey Governor Chris Christie and Huckabee are at 3%.

One of the things I'm looking at is the total anti-establishment sentiment expressed in the polls.  If you look at the outsiders (Trump, Carson, Cruz, Fiorina and Paul) in the CBS-NY Times Poll, they are totaling 69% of the vote, a figure that's consistent with other recent polls..  Unless Rubio can successfully portray himself as anti-Establishment, I don't see a path to his victory.   I stand by my assertion that it appears that Ted Cruz is the only candidate positioned to defeat Trump for the nomination.

The nomination of Trump would be a disaster for conservatives. With the unpopular Hillary Clinton the almost certain Democratic presidential nominee, the Republicans are on the precipice of dominating all three branches of government as well as state legislatures and governorships.   The only missing piece is the White House. By nominating Trump, who consistently polls as the worst general election candidate against Clinton and exceeds the former Secretary of State in untrustworthiness, Republicans could well lose all 50 states.

But in the extremely unlike scenario that Trump won the general election, it is unclear what conservatives actually win.  Pre-candidate Trump held consistently liberal political opinions which didn't magically change 180 degrees until he decided to run as a Republican.  Trump has declared himself to be for socialized medicine, gun control, the use of eminent domain to acquire land for developers, and said he was "very pro choice," including supporting partial birth abortion.  Despite having changed several of his views (including his opinion on immigration and Muslims), Trump often appears to forget he is running as a Republican, reverting to pronouncing liberal positions on the campaign trail.  On the stump, Trump has expressed support higher taxes, an expansion of Obamacare, higher taxes and the continued funding of Planned Parenthood.  He also continues to stand by his support of the use of use eminent domain to take away a woman's house for parking for limos at his casino in Atlantic City.

One thing is certain.  If Trump is the nominee, conservatives lose before even the first shot of the general election is fired.

Tuesday, December 8, 2015

Christians Must Denounce Trump's Proposed Muslim Travel Ban; Religious Freedom Applies to EVERYONE

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out—
Because I was not a Jew.
Then they came for me—and there was no one left to speak for me
--Pastor Martin Niemöller
Donald Trump
Over the course of the past year or more I've witnessed enough anti-Christian bigotry to last a lifetime.  Christians have been derided for their faith and told that their views are not legitimate.  While those bigots don't (yet) demand that Christians give up their beliefs, they do insist Christians have no right to practice their faith in public, that the tenets they believe in must take a back seat to what others think is fair and right.

That is not the way America works.  Religion freedom has always been a cherished American value.  So too is the freedom to choose one's religion.  Government has no right to tell us what our religious faith should be or to take our rights away because of our faith.

Yesterday Republican Presidential candidate Donald Trump declared that the United States should enact a ban on Muslims traveling to the United States.  That is an utterly reprehensible suggestion, an idea that could not be more un-American.  Should we ban Muslim extremists who use their religion as a justification to do harm to this country?  Absolutely.   But certainly not all Muslims fall into that category; not even a majority do. 

Christians, who have been the target of the religious bigots, have a particular duty to speak out about Donald Trump's anti-Muslim bigotry.   If we need a reason to do so, we need only consider Pastor Niemöller's most eloquent poem.

Saturday, December 5, 2015

Is Cruz Now the Only Hope to Stop a Trump Nomination?

Looking over the CNN poll released yesterday, and comparing it to one six weeks earlier, reveals surprising results.

First, New York businessman Donald Trump expanded his support from 27% to 36% while physician Ben Carson fell from 22% to 14%. The physician is now in third behind Texas Senator Ted Cruz who
Texas Senator Ted Cruz

rose from 4% to 16% since the middle October CNN poll.  As a result of the shakeup, Trump expanded his lead from 5% in the earlier CNN poll to 20% in the latest.

All are major developments.  But maybe the most significant development of them all is that the anti-establishment GOP vote (Trump, Carson, Cruz, Fiorina and Paul) has expanded to from 62% in the earlier CNN poll to 70% in the most recent one.  The anti-establishment mood of the Republican Party not only is not fading; it is growing.

That is a huge development.  Although it is a stretch to call Marco Rubio an establishment candidate given he was elected with tea party support, and still enjoys significant tea party support, the Florida Senator is the leading non-outsider with 12% of the vote.  While that's an improvement over his previous 8%, it is not clear how GOP establishment's rallying behind his candidacy gets him anywhere close to a majority of the vote.  If Jeb Bush (3%), Chris Christie (4%), and John Kasich (2%), all dropped out and their support drifted to Rubio, he still would only have 21% of the vote, 15% behind where Trump is now.

Rubio continues to poll as the best general election candidate against Hillary Clinton, while Trump polls as the worst.  Of course, head-to-head matchups don't mean much if you don't win the nomination.

There may be a time, in the not too distant future, when GOP establishment types have to eat crow and line up behind Cruz to prevent Trump from winning the nomination.  Given Trump's lengthy liberal political history, and his history of being less than honest, conservatives have a lot to fear that Trump is simply pretending to support their views to win the nomination.  That is even before you get to the controversial things Trump says and does while on the stump, including most recently mocking a reporter by imitating his disability.

Hillary Clinton is not a strong candidate.  With Obama-fatigue setting in the, this is an election the Republicans should win.  Yet, if Trump is nominated the Republicans not only are likely to lose, there is a possibility that Trump may actually lose all 50 states and sink Republican control of the Senate and House with him.

Yes, Ted Cruz is beginning to look like the only real alternative for conservatives.

Thursday, December 3, 2015

Will Frank Gifford Autopsy Finding CTE Deliver Blow to Football's Popularity?

CNN reports:
The family of Frank Gifford says the revered sportscaster and NFL star suffered from chronic traumatic encephalopathy, a progressive brain disease linked to the types of brain injuries and head trauma common in football.
"While Frank passed away from natural causes this past August at the age of 84, our suspicions that he was suffering from the debilitating effects of head trauma were confirmed when a team of pathologists recently diagnosed his condition," the family said in a statement released Wednesday.
Gifford's family said they decided to have his brain studied "in hopes of contributing to
Frank Gifford
the advancement of medical research concerning the link between football and traumatic brain injury." And they decided to make his diagnosis public to honor Gifford's commitment to promoting player safety, dating back to his involvement in creating the NFL Players Association, a union representing players' interests, in 1956.
CTE can be diagnosed only after death.
Gifford's diagnosis comes amid a growing focus on the risks athletes face from suffering repeated concussions, and just hours after the NFL admitted its concussion protocols had failed when St. Louis Rams quarterback Case Keenum kept playing Sunday even after his head slammed into the field

The problem is blows to the head start in youth football and continue through high school, college and the NFL, at least for the players who make it that far. So far nobody has developed a solution.  Helmets might actually make the situation worse by encouraging players to lead into tackles with their heads, resulting in more cranial blows.
For years I looked back with regret that I didn't play high school football.  Instead I was very blessed to play on a state ranked baseball team that had a hall of fame coach. While I thoroughly enjoyed that experience, I was at best a mediocre baseball player.  I think I was much better suited physically for football and would have been much better at that sport.  But now looking back, knowing former high school football players who have early onset arthritis, knees replaced and other problems, including CTE, I'm glad my parents only let me play one sport and I chose baseball.

Tuesday, December 1, 2015

Liberty's First Crisis Book Review; Striking Similarities Between Sedition Act and Attorney Discipline for Judicial Criticism

Earlier this month, the Indiana Supreme Court disciplined yet another attorney for writing critically of a judge.  This comes as state supreme courts and disciplinary bodies across the country continue to ignore the First Amendment and the public figure actual malice requirements of New York Times v. Sullivan in order to use professional rules to target members of the bar who dare criticize judges. 

The notion that the law allows for special protection for judges more so than other public officials actually originated in Indiana with the 1979 Matter of Lendall B. Terry case which I wrote about before.  Spelled out in more detail in subsequent cases that piggybacked on Terry is the notion that the allowing attorney criticism hurts the public by undermining confidence in the judiciary.

That argument should sound familiar to students of history.  It is EXACTLY the same argument used by the Federalists in support of the 1799 Sedition Act that led to criminal prosecutions for critics of federal officials, including Federalist President John Adams.

A newly-released book, "Liberty's First Crisis: Adams, Jefferson and the Misfits Who Saved Free Speech," written by Charles Slack details the arguments for the adoption and enforcement of the Sedition Act, passed by the Federalist-dominated Congress in 1798 and signed by Federalist President John Adams.  The Sedition Act made it a crime to "write, print, utter, or publish . . . any false, scandalous and malicious writing" with respect to the United States and federal officials, including the President and members of Congress.  Vice President Thomas Jefferson, a Democrat-Republican who strongly opposed the Sedition Act, was excluded from the Sedition Act's protections.

Slack outlines the Federalists' claim that the Act was needed to protect the reputation of federal officials and prevent criticism from the undermining the actions of United States government.  The Democratic-Republicans in Congress argued that Sedition Act was contrary to the First Amendment Free Speech Clause and that it would be used to stifle critics.  Federalist congressmen countered that the First Amendment only protected prior restraint on speech and that it did not shield speakers from the consequences for their speech.  Federalists argued that if someone was going to criticize the federal government and its officials, they would not be punished if they could prove their statements to be true.

Slack then turns to detailing the criminal prosecutions that took place under the Sedition Act.  Sedition defendants included nearly a dozen critics, including a drunk who joked about wishing President Adams would get shot through the ass and Vermont congressman Matthew Lyon who opined that the President's "unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice."

Most of the prosecutions involved defendants who had expressed critical opinions instead of factual assertions.  (Hyperbole was also apparently a concept not known then or prosecutors simply didn't care.)  Federalist prosecutors wanting to make a name for themselves leveled charges against government critics which culminated with show trials conducted by Federalist judges.  Hapless defendants were not allowed to challenge the constitutionality of the Sedition Law  (The prosecutions predated judicial review being adopted in the 1803 case Marbury v. Madison.)  The issue before the jury was generally only whether the critical statement was made.  In most prosecutions, the issue of whether the statement was false was a judicial determination and the Federalist judges appointed by Washington and Adams always found that the criticism was "false."

The Federalists' argument for the Sedition Act and how it was applied to pursue critics are very well-known to me.  As an attorney, I am intimately familiar with Disciplinary Rule 8.2 which punishes attorneys for untruthful criticism of judges.  While Federalists argue that the Sedition Act is needed to prevent criticisms to cause people to lose faith in the actions of the federal government, state supreme courts declare that Rule 8.2 is needed to prevent attorney criticism from causing people to lose faith in the judiciary.  Like the Sedition Act prosecutions, Rule 8.2 attorney discipline prosecutions inevitable devolve into punishing attorneys for the expression of opinions about judges.  As my research into Rule 8.2 prosecutions shows, 98% of the time state supreme courts find the attorney criticism or opinion about the judge is "false" and punish the attorney speaker.  In some states, they even put the burden on the attorney to prove the criticism is true.

Slack's book about the Sedition Act concludes with a discussion of free speech around the world and the history of other assaults on Free Speech, including the Sedition Act of 1918, passed during World War I, and the current assault on politically incorrect speech on college campuses.  I would highly recommend it.