What Have We Wrought? Voters Reward Bad Behavior

Posted in Uncategorized on November 4, 2014 by thebluebros

I have three children: Grant (age 7), Eleanor (age 4), and Dexter (age 3). As I believe most of my friends and family would attest to, my children are very well-behaved. It is something in which I take a fair amount of pride.

From 2001 to 2005, before I had my own children, I taught middle school Social Studies. During that four-year span, I prided myself on having, if not the most well-behaved classes in the school, certainly some of the best-behaved classes in the school.

My formula for teaching and raising well-mannered children is simple. When I observe a child acting out in a negative way, I ask myself what the child hopes to gain by acting out in this manner, and I respond by giving them the opposite of what they want. For example, if my child is whining because I didn’t give him a big enough piece of cake, I cut the piece he has in half. If a student in my class started packing up while I was still instructing so he could get out the door the second the bell rang (a huge pet peeve of mine), I would make him sit in his desk until every student had first exited the class. While this may sound harsh to some, the result is polite, well-behaved children. Further, once clear expectations are set, disciplining becomes fairly infrequent, but I digress.

This type of approach to parenting and teaching is not unique, new, or at all creative. I don’t profess to be the only parent or teacher to do this, but it amazes how many people do the opposite. For example, have you ever seen a parent tell his or her a child he cannot have a certain object, the child then throws a temper tantrum, and the parent responds by relenting and providing the child with the desired object? We have all seen this and probably rolled our eyes. What that parent does not seem to grasp, but you probably do, is that a lesson has just been taught to the child: If I throw a temper tantrum, I get what I want. That parent can certainly count on experiencing more temper tantrums.

I mention all of this because this nation has just acted like the above parent giving in to an ill-behaved child, and thereby encouraging future bad behavior.

Since President Obama was elected president, Congressional Republicans have made it their number one priority to prevent the enactment of any meaningful laws—even laws they supported such as immigration reform. This is not a secret or conspiracy theory. Republicans openly admit this.

Congressional obstruction was carried out not so much because Republicans disagreed with the proposed laws (although often times they did), but because they did not want President Obama to receive credit for doing anything useful for the country. Republicans remembered what happened after 1994 when President Clinton and Congressional Republicans led by Newt Gingrich passed a lot of bipartisan pieces of legislation. The American people liked it and rewarded the president’s party in the 1996 and 1998 elections. Republicans in 2008 were not going to repeat this “mistake.” And true to their word, Republicans have effectively shut down the legislative branch for the past four years and rendered the government ineffective.

The problem for the American people is that Tuesday’s election rewarded this behavior. It affirmed the Republican’s theory—i.e., If we work with the President to pass bipartisan legislation to help the country, we lose elections. But if we stop the government from doing anything meaningful while the other party controls the White House, we get to paint the president as ineffective and we win elections.

Based on the lesson the voters have just taught Congressional Republicans, what incentive do Republicans in Congress have to work with President Obama to get anything accomplished? And what do you think will happen in two years if Republicans retain control of at least one chamber of Congress and another Democrat wins the White House (a very likely scenario)? You guessed, it: obstruct, obstruct, obstruct. While perhaps such a plan is unpatriotic, or perhaps even treasonous, you can’t say it’s not rationale. Thanks American voters. <rolling eyes>

– Dylan

My 5 Thoughts Heading Into Election Day: VOTE (!) and 4 Others

Posted in Uncategorized on November 3, 2014 by thebluebros

Thought #1: Vote!

If you live in a white community, you are in luck. Voting is easy and takes almost no time. If you are a person of color living in a less affluent community, voting is a lot harder, but I still would beg you to vote. Seriously though. If you are white, you have no excuse.

Thought #2: I will likely never live through a national election less important than this one.

Every year you can count on pundits declaring this the most important election in our lifetime. It’s done by both sides, particularly in presidential election years. As I have stated in the past, I firmly believe 2000 was the most important election that will occur in my lifetime. In stark contrast, I hereby declare 2014 to be the least important of my lifetime.

The White House is not changing hands. The U.S. House of Representatives, a body of 435 people, is not changing hands and is predicted to only shift anywhere from 6 to 12 seats (hardly a sea change). Remember in 2012 when Democrats received 1.2 million more votes than Republicans for the U.S. House, but Republicans not only won the House, but won their third-largest majority in 90 years. Yah, that’s probably gonna happen again. And the Democratic/Republican split between governors and state legislatures is not expected to change much.

The only change that may come about (OK, probably), is Republicans retaking control of the Senate. While a slight annoyance for Democrats. Is it really going to be that big of a deal? I say no for the following reasons.

  • First, what legislation did the Democrats hope to get to President Obama’s desk in 2015 and 2016 that it won’t be able to because the Democrats lost the Senate? None.
  • Second, some are saying it now will be too hard to have federal judges approved by the Senate. That is true, but seeing what kinds of judges Obama is nominating, I don’t really mind so much a few more federal judge seats sitting empty, and rolling the dice that the next president will nominate some real liberals. That isn’t too pie-in-the-sky. There is reason to be optimistic Democrats will retain the White House. Republicans have a crazy bench of front runners and Democrats have won the popular vote in 5 of the last 6 presidential elections. Republicans continue to have a demographics problem when people actually show up to vote (as they do in presidential elections). If we look to the Supreme Court, it makes almost no difference because what is the difference if Democrats have 53 votes or 49 votes. They need 60 to overcome a guaranteed Republican filibuster of any decent Supreme Court nominee.
  • And third, Democrats are almost certainly going to retake the Senate in two years. Remember, the seeds for this electoral debacle were laid in 2008 when the current crop of Democrats were elected at a time with huge voter turnout and high distrust for Republicans. That is why in 2014, Democrats have a ton more seats to defend and they are largely in red and purple states (e.g., Alaska, North Carolina, Louisiana, Colorado). Well in 2016, Republicans will face the inverse problem. Because 2010 was such a boon year for Republicans (as are most elections when everyone stays at home except for old, white people), Democrats will be defending just 10 senate seats and Republicans will be defending 24! Yes, 24. The only concerns for Democrats are Harry Reid in Nevada (toss-up) and Michael Bennet in Colorado (lead Dem). On the Republican side, there is a slew of possible pick-ups, including Florida, Illinois, Iowa, Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, and Wisconsin. Even if Republicans win the Senate this year, it will only be by one to three seats. Democrats will very likely get back to, and over, 50 seats in 2014.

In summation, assuming Republicans take the Senate, it will likely be a very temporary control that affects very little in the way of public policy.

Thought #3: I am amazed any human being could vote to re-elect Mitch McConnell in 2014.

When I worked on Capitol Hill back in 1999, I remember meeting members of Congress and thinking to myself, “How on Earth did this person ever get elected?” I remember having this thought in particular when meeting Senators Barbara Mikulski (D-MD) and Bill Roth (R-DE).

Mitch McConnell is like that. He is hard on the eyes and seems to have no people skills. Yet, here he is—ahead in most polls against a credible and well-funded challenger.

I assume many of these politicians get elected out of party loyalty and many voters have no clue what the politician has or has not done. McConnell is not like that though. He is incredibly well known as has been the Senate minority leader for seven years, and with the Republicans out of the White House, he is often times the national face of his party. With a spotlight so squarely on him, it is hard to imagine a politician doing so much to risk his political future by saying outlandish things, opposing policies supported by most Kentuckians, and in general, being a first-class prick.

If anyone wants to get a flavor of Mitch McConnell, I encourage you to listen to this 2-minute radio interview. In it, Mr. McConnell reveals the following things: (1) he wants to strip 500,000 Kentuckians of their health insurance; (2) he wants to void thousands of marriages and prohibit millions more from getting married; (3) he is against doing anything about global warming or even acknowledging its existence; and (4) is unwilling to explain the rational for any of his conclusions. On top of all that, he manages to say all of this in the nastiest and most arrogant tone imaginable. How can anyone vote for this guy? I don’t care if the Democrats ran Kim Kardashian. Who could be worse than Mitch McConnell?

There is also the well-known fact that Mitch McConnell stated in 2010 that his number one goal was not to accomplish anything for the American people, but to make sure President Obama only served one term. Mr. McConnell stated, “The single most important thing we want to achieve is for President Obama to be a one-term president.”

There is also the fact that Mitch McConnell has shattered the previous filibuster record by invoking it 413 times since President Obama became president. No one is more responsible for the least-effective Congress in American history than Mitch McConnell. And that shouldn’t surprise anyone. How can anything get done between two competing factions when one faction begins talks by stating, “Our number one goal is a political one—to strip our opponents of power”? Again, how can anyone vote for Mitch McConnell—a man who puts personal power over country and all else.

Thought #4: Shame on Democrats for not having the courage to campaign on their successes.

For all their warts, there is no denying that Obama and the Democrats have put the United States in a significantly better place now than it was in January 2009. By virtually any measure, this country is so, so much better off now than when President Obama took over. Look to the unemployment rate, job creation, the national deficit, civil rights for gays and lesbians, percent of people with health insurance, cost of healthcare, consumer confidence, and on and on. I don’t hear Democrats running on these things? Why? Instead we have Democrats falling over themselves to convince people who will never vote for them that they love guns and hate taxes.

While I would have loved to see Mitch McConnell gone, it will not break my heart to see Alison Lundergan Grimes remain in Kentucky. This is a Democratic candidate who was too cowardly to admit she voted for President Obama. She apparently thought her constituents were so dumb they could not figure out who she voted for in 2012 for president even though she served as an Obama delegate to the Democratic Convention. Ugh. It makes you wonder how many Grimes and Mark Priors and Blanche Lincolns we need before Democrats learn to behave like Democrats. As Harry Truman said, “When given the choice between a Republican and a Democrat who acts like a Republican, the voters will choose the Republican every time.”

Lesson #5: I continue to underestimate just how irrational the American electorate tends to be.

Remember when Democrats controlled the House, the Senate and the White House in that 2-year period from 2009 through 2010? Even though we had constant GOP threats of filibuster, traitors like Joe Lieberman, and cowards like Blanche Lincoln and Ben Nelson, Democrats got a significant amount of positive and important things done, including: the Affordable Care Act; expanded the GI Bill; enacted student loan reform, credit card reform, and Wall Street reform; passed the Fair Pay Act; enacted the 9/11 First Responders bill into law; expanded national service programs and health care for kids; ratified the START treaty with Russia to reduce nuclear warheads; repealed Don’t Ask, Don’t Tell; passed a ton of stimulus including huge tax cuts for the middle class and Cash for Clunkers; and saved America’s auto industry. Americans supported these things in huge numbers. And what did the American people do to reward President Obama and the Democrats for this? They stayed home on Election Day in 2010, or worse, voted Republican because the changes they supported didn’t create an instantaneous turn-around in the economy.

Four years later, what have the Republicans done with their post-2010 power? They have done nothing of value in the House (unless you consider a government shutdown or 46 attempts at repealing the ACA meaningful) and have effectively shut the Senate down for four years.

One of my biggest complaints in politics is that the parties do not do an effective of enough job showing the differences between the parties. Over the past six years, however, we have been given a very accurate and compelling portrait of what these two parties stand for. I am in complete awe when people see the same things I see, compare 2009-2010 with 2011-2014, and come back with, “Yah, I think I need to vote for Joni Ernst.” You may as well be telling me that 2+2=turtles. Does…not…compute.

So those are my five thoughts heading into Election Day. What are yours?

– Dylan

Exercise Your Civic Duty to Question Authority

Posted in Uncategorized on September 3, 2014 by thebluebros

I neither like nor trust authority. I never have. And I hope I never will. It probably explains why I am self-employed and have always kept a watchful and skeptical eye on anyone who has ever exercised authority over me—whether that authority is my government, my bosses, or my teachers. I am proud of this. There is no other quality I possess that makes me feel more American than my constant questioning of authority and the decisions they make. When I see other Americans putting hard questions to people in power, I feel real solidarity with them and pride in calling them my fellow countrymen.

In contrast, I hold a fair amount of confusion and scorn towards people whose first instinct is to defend power. It is difficult for me to comprehend anyone having a natural inclination to uncritically accept what those in charge tell us as 100% true. And while I generally disfavor use of the word, such a disposition strikes me as decidedly un-American. This epidemic of the unquestioning patriot was especially stark in the build-up to the Iraq War, but it is now even more evident with so many of us ceding all decision-making with regard to use of force to a militarized, insular, and defensive police culture.

I started noticing these people (i.e., those who love to cozy up to unchecked power they’ll never have) soon after the killing of Trayvon Martin. However, these people really started coming out of the woodwork following Officer Darren Wilson’s shooting of Michael Brown. And when I say “these people,” I am not referring to those who want all information before reaching a conclusion on the shooting of Michael Brown. Kudos to these thoughtful and patient people. Rather, I refer to those people who immediately, and with almost no details of the shooting, stood behind a police officer who shot an unarmed teenager. These people are not just voicing their opinions, but they are actually handing over their hard-earned money to defend a potential murderer. As has been well-publicized, supporters of Officer Wilson have so far raised $400,000 on his behalf—which is significantly more than Americans have donated to Michael Brown’s family.

Some of these power defenders are so desperate to defend police and Officer Wilson that they have grabbed onto fake news stories that fit their narrative that Officer Brown had to shoot Michael Brown. For example, many of those supporting Officer Wilson spent days discussing how Officer Wilson sustained a fracture to his eye socket before firing his gun (eventually getting picked up by the mainstream media without a solid source). Turns out, the story was completely unsubstantiated and the person who started it used someone else’s x-rays as evidence of the fracture. I suspect that the debunking of this mythical story swayed no one’s opinion who had used it to justify the shooting death of Michael Brown.

The service provided by police is undeniably an essential one, but it is also one that if done improperly, can reduce our freedoms, cause law-abiding citizens to live in fear, fuel racism, and kill our fellow citizens. Virtually everyone recognizes the need for police, but not enough of us recognize the need to police the police, and the patriotism of doing so.

– Dylan

Questioning the Police? Be Prepared to Overcome the Hero Worship & Wagon-Circling

Posted in Uncategorized on August 31, 2014 by thebluebros
Police Angel II

Is this really representative of every police officer?

There are two major challenges a person faces any time he or she speaks about a police officer in terms that reflect anything other than gratitude or appreciation: hero worship and wagon-circling.

Police are not alone in being labeled heroes. Other professions in which the members of said profession are described as heroes include: doctors, nurses, teachers, firefighters, and our military service members. Basically, if your job potentially saves a life (or you are a teacher), you get to be a hero.

While it is noble that we have collectively decided to honor police officers (who have unquestionably chosen a life-saving profession), the much ballyhooed adoration goes overboard. This is a problem because of the hundreds of thousands of Americans who choose to be a police officer, not all of them are swell people who deserve to be labeled a “hero.” As one friend recently pointed out, some seem to think the laws of statistics do not apply to law enforcement. When we point to one of these non-heroes with concern, the hero-culture tries to shut the criticism down. Sometimes the questioning is squelched by police officers who have begun to believe their own hype (i.e., “Don’t question us. Didn’t you hear? We are heroes.”). Other times the questioning is thwarted by people who think the only way to support the police is to believe every single one of them is a hero despite all evidence to the contrary.

The other challenge in questioning the actions of a police officer is the wagon-circling of police any time criticism is raised against anyone within their ranks. Any person who knows a police officer probably knows what I mean. Police officers do not think of their fellow officers as co-workers; rather, they are “brothers.” While this sentiment is understandable, helpful, and even somewhat admirable, it too often clouds where police’s first duty lies—not to their fellow officers, but to their community and the people in it.

The result of all of this is that police–a profession where higher accountability is critical due to the disastrous consequences of failure–face less accountability than many other types professionals. This lack of accountability is only possible because too many officers and their supporters operate under the unsupportable belief that every officer is infallible.

In my profession of law, I find that the vast majority of attorneys have no tolerance for dishonest or incompetent attorneys. They are difficult to deal with and give everyone in the field a bad name. As a result, attorneys’ conduct is heavily regulated (at least in Oregon). This was never clearer to me than last month when a younger attorney had her license to practice law revoked for 30 days because she changed the time on a parking ticket to try and avoid paying a small fine. Before the Bar got involved, she had already paid the fine, and when confronted by the Bar, she admitted wrongdoing and apologized. I have no doubt this public reprimand (which was published in detail in a magazine provided to every Oregon attorney free of charge) was humiliating. It will also follow her for the rest of her career. In fact, if you look up her name in the Oregon State Bar directory, it will, for the rest of her career, state that she had her license suspended for 30 days as a disciplinary sanction. This young attorney also could have lost her job over this. The Oregon State Bar, combined with peer pressure from other attorneys, does a very effective job of policing its members. The same cannot be said for law enforcement.

I recently witnessed the wagon-circling phenomenon combine with the hero-worship phenomenon in a very disturbing display. I know two police officers on Facebook, one well and one very distantly. The one I know well frequently posts about his job, and regularly receives comments along the lines of “We are so grateful,” “Thank you for what you do,” and “You are an inspiration.” Real hero stuff. With the recent press coverage of what appears to be pretty terrible police behavior (most notably in Ferguson, MO, but other places as well), it seems my Facebook friend police officer lost his cool. He posted on his Facebook page that he would unfriend (not just unfollow) any Facebook friend who posted anything that was not 100% supportive of police officers. Got that? Everyone was free to heap praise on him for being a hero, but any question about any police officer (even a police officer 2,000 miles away, whom he’d never met) was enough to warrant the ending of a friendship. The second police officer I know saw my friend’s post and commented that he had already been unfriending all of his friends who voiced anything but unconditional support for every one of his police brothers and sisters across the nation.

This is frightening. If this small population is representative of police in general (and I have no reason to think that it is not), police are taking affirmative steps to fish for compliments, praise, and adoration, and eliminate all input that challenges the notion that every officer is perfect (i.e., place themselves in a bubble of unquestioned flattery and adulation). This intentional detaching from reality was confirmed when my police officer friend informed me that law enforcement only had a “few bad apples” and “all were found and weeded out.” This came from an officer with 14 years of experience. Such irrationality and delusion from a person with so much power should frighten anyone.

There are approximately 1 million law enforcement officers in this country. Like any population of 1 million people, it will contain some who are incompetent, unethical, and cruel. Accordingly, we need to do two things. First, we need to begin by acknowledging that not every police officer is going to be a hero. And second, we need to find a way for police officers to recognize that their first obligation is to the community, not each other—and particularly not to bad police officers. This will require police officers be removed from their self-induced bubbles. Once these two goals are accomplished, perhaps the community and the police can begin working together to ensure each officer truly represents society’s finest.

– Dylan

Saving 15% Never Cost You So Much: Geico’s War Against You

Posted in Uncategorized on August 5, 2014 by thebluebros

Everyone knows you can save 15% or more on your car insurance, but did you know that Geico is the worst auto insurance company in America?

To be sure, we all detest auto insurance companies, but in the universe of suckage, not all insurance companies are equal. Determining which insurers are the worst or the best (or more accurately, the least worst), is not an exact science. You can measure quality of insurance by any number of metrics, including: customer service scores, speed of payouts, amount of payouts, percentage of denied claims, and profitability. Ranking auto insurers is a confusing endeavor. Don’t believe me? Just google “worst auto insurance companies” and “best auto insurance companies.” You will find no patterns, and often times you will see the same insurer on the “best” and “worst” lists.

The rubric this piece uses to assess Geico as the absolute worst of the worst of automobile insurers is, “If you were involved in a motor vehicle accident, which insurance company would you most hate to be involved?” By that standard, Geico is the clear winner in our competition for the title of “Worst Auto Insurer in America.” No other insurer comes close to challenging Geico for this title.

As a personal injury attorney, I deal with automobile insurance companies every working day of my life. Each of them have certain reputations. For example, USAA is considered fairly generous, but its generosity is often times counteracted by extreme incompetence. Liberty Mutual is known for never hiring enough claims adjusters; the result being poor customer service and slow response time. Allstate is known for treating its insureds very well until a claim is filed; once a claim is filed, Allstate treats its insureds like unfortunate squirrels standing near the edge of the Grand Canyon—which is to say not well. The American Association of Justice named Allstate the worst insurance company in America, saying, “There is no greater poster child for insurance industry greed than Allstate.”

Geico’s reputation is quite different. Geico is known for fighting. It will fight everything. If that means spending $20,000 in litigation costs to avoid paying an injured person $4,000, it will do so. Some may consider this a positive attribute, but as I will explain below, this is terrible for anyone involved in an auto accident—whether that be the assailant or the victim, or the Geico insured or the non-Geico insured.

To provide some context, let me explain to you what typically happens in the most common of all motor vehicle accidents—the low-speed rear-end accident where the vehicle in back is found to be at-fault for the accident. In these very common accidents, the person in the front vehicle will sometimes experience soft tissue injuries (sprains/strains) and receive medical treatment for a few months before making a full recovery. The injured person sends a $10,000 demand to the at-fault driver’s insurance company, and after some back and forth, the case settles for an amount between $2,500 and $8,000, depending on a wide array of factors. That is normal.

The reasons these types of cases typically settle quickly include: (1) Liability is clear, meaning the at-fault driver’s insurer cannot go to trial and argue he didn’t do anything wrong; (2) Fighting these cases through trial is going to cost, at a minimum $20,000, and most people can recognize that $20,000 is more than $4,000; and (3) Many states, including Oregon, have a statute that requires the insurers pay for the injured parties’ attorney fees if they lose at arbitration or trial. These legal fees will almost always exceed the amount in dispute by a great deal.

Geico, however, has adopted a cynical strategy of fighting all of these low-impact cases. Geico has not publically announced its reason for this, but the only reason I can think of for their actions is that it believes if it can make the claims process painful enough for injured people and their attorneys, people will stop bringing lawsuits related to motor vehicle accidents. Let me show you what this looks like up close.

I have a case right now where my client was rear-ended by a teenager. He sustained soft-tissue injuries and treated for 12 months and eventually made a full-recovery. At the end of his 12 months of treatment, my client made the unreasonably low demand of $7,500. Geico responded by making my client a top offer of $1,500. Trust me when I say such an offer would be funny if it was not so insulting to my client who had suffered for 12 months with back pain that very much reduced the quality of his life. My client of course did not accept this offer. We went to arbitration and the arbitrator quadrupled Geico’s offer, giving my client an almost $6,000 award PLUS attorney fees to me because we beat Geico’s pre-suit offer of $1,500. This should not have been a surprise to anyone. This would be an expected award for a case like this—especially to a client like mine who is very likeable and credible. So how did Geico respond? They appealed the arbitrator’s award, and in November, we have a trial to dispute a claim for $7,500—a complete waste of jurors’ time, the parties’ time, the judge’s time, and the time of court staff. The only person who will likely come out ahead in all of this is me because Geico will very likely have to pay me additional attorney fees.

A similar case went to trial in Multnomah County two weeks ago. The plaintiff in that case, an 83-year old great-grandmother won almost $10,000 at arbitration, but instead of paying what they owed her, Geico appealed the award to a full jury trial. The jury awarded the grandmother an almost identical award as the arbitrator, plus a whole lot more in attorney fees. At trial, it was revealed that Geico had spent at least $8,000 in hired guns to come in and testify that Grandma was not hurt very bad. There is no way of knowing how much Geico spent hiring its own attorneys, but $15,000 would be a conservative estimate. And because Geico lost, it had to pay Grandma her attorney fees, which I expect were close to $30,000. Do the math. Geico spent somewhere in the range of $60,000 because it wanted to avoid paying Great-Grandma a few thousand dollars.

The result of all of this is that when a new client comes into my office and says, “I was in an auto accident,” my first questions are, “Was the other driver insured, and if so, who was his insurer?” If the answer is Geico, I tell them to prepare for a long, slow grind.

Some may see Geico’s behavior as tough, macho, or somehow noble. What these people do not understand is that Geico’s litigious practices are just as tough on those who have Geico insurance as those who are hit by someone with Geico insurance. The reason for this is that if you cause someone to be injured by your driving, your insurance usually takes care of it, and you are not much involved. It’s a pretty easy process, and that is how it is supposed to be. That is why we buy insurance. With Geico, however, you run a nearly 100% chance of being sued.

Being sued, even if you get free legal representation provided by Geico, is not fun. It means you are going to be deposed. This is where you are put under oath and an attorney hostile to your interests is going to spend hours asking you every personal detail of your life in search of a nugget he or she can share with a jury to make you look bad in public. A private investigator may look into your past and interview prior acquaintances who may have less-than favorable opinions about you. Then you have to go to an arbitration and then a trial where you have to take time off work and sit through days of mindless court proceedings and then get put on the stand where your past is made public and you are made to look dishonest and reckless. That is what your Geico policy gets you.

Geico actually does win some of its trials. This is usually done by hiring a team of doctors (the same ones almost every time) whose sole job is to write reports for insurance companies and testify at trial how they know the plaintiff was not hurt despite never meeting the plaintiff. The challenge for plaintiffs and their attorneys is that unlike insurance companies, we cannot afford to bring in orthopedic surgeons and biomechanical experts at a cost of $10,000 for a shot at winning $7,500. All we have is usually the primary care physician or chiropractor who will come in and say, “I treated this person the day of the accident and once a week for the next six months. They were really hurt.” Sometimes juries reach verdicts based on the number of doctors testifying (plaintiff loses), or by the credentials of the doctors testifying (plaintiff loses), or how well the doctors testify (again, plaintiff loses because often times this will be a chiropractor’s first time in a courtroom versus an insurance doctor who is in court three times a week). What these numbers show is that even when Geico “wins,” it loses. It does so because it spent more money than the case was worth and just put its insured through an unnecessarily miserable process.

Every time Geico loses one of these “small” cases (e.g., spends $60,000 for nothing), and even when it wins (e.g., spends $20,000 to save $5,000), those costs are absorbed into rates. A Geico supporter may say that such a strategy has long term gain that cannot be easily measured, such as discouraging injured persons and their attorneys from taking these cases. I have found though that quite the opposite is true. I have yet to meet an injured person who knows Geico fights every penny to the death, and when a personal injury attorney has a case against Geico, he or she works twice as hard. This is because the attorney knows this case is going to be litigated through trial and the attorney will be getting his or her attorney fees if the attorney can beat what is typically an abysmally low pre-filing offer (in fact, writing this article is against my self-interest as going up against Geico has so far proven to be a profitable endeavor for me). Further, even if this cynical strategy did actually reduce costs for Geico and its customers, is this strategy ethically defensible? Is it really okay for an insurance company to save money for insureds and shareholders by discouraging those who are truly injured from recovering what is rightfully owed to them?

In the end, Geico is a very bad neighbor. Its ad campaign is light-hearted, but its claims adjusting practices are cynical and cruel. If you are involved in an accident, pray it is not against someone with Geico insurance, and if you have Geico insurance, for God’s sake, change insurance companies. Maybe if enough people vote against these practices with their feet and purchase other auto coverage, we will see positive changes from our worst auto insurance company.

-Dylan

The Star-Spangled Hammer: A Plea to Stop Being Forced to Sing the National Anthem at Every Sporting Event

Posted in Uncategorized on July 1, 2014 by thebluebros

I can’t be the only sports fan in the world who gets annoyed when I sit down to watch a sporting event and am unwittingly forced to wait 2-3 minutes while an unknown singer gives me his/her rendition of the “Star Spangled Banner.” There’s got to be some other poor sap at home just trying to catch a few innings of the Richmond Flying Squirrels/Savannah Sand Gnats game before going to work, who now has to endure an unnecessary vocal performance by the 18th runner up from season 37 of American Idol.

Let me make clear that I’m not anti-national anthem. I of course understand the significance of the song. The imagery of war, the strong sense of patriotism, and the honoring of our national symbol. During times of war and tragedy, the Francis Scott Key-penned tune has served as a source of hope, comfort, and unity. The song is a way to honor our nation’s history, to bring to consciousness our amazing freedoms, and a way to remember those fallen heroes who gave their lives to protect and ensure the preservation of our liberties. Given all of these great things, what could possibly be wrong with singing the national anthem before a sporting event?

Well…a few things.

First of all, sports and nationalism is an arbitrary alliance. What does the national anthem have to do with a sporting event? Why do we save this patriotic ritual only for athletic events? What about singing the national anthem at work every day? What about at church? Or town hall meetings? Or graduations? Or in the classroom? The idea of tying the national anthem to a football game is just as arbitrary as singing Christmas carols at a monster truck rally. There’s no reason for it.

I read one person’s thought that the national anthem is a battle cry, one designed to strike fear in the heart of opponents. This makes sense when Americans are playing a foreign opponent (e.g. the Olympics), but in 99.9% of American sporting events, both teams are American. Is an opposing team supposed to be intimidated by the playing of its own national anthem? Playing the national anthem before a Lakers/Celtics game is akin to a boy telling his biological brother that, “My dad can beat up your dad.”

Very few people actually enjoy singing the national anthem. (An obvious exception is a woman at my undergraduate university who forced a gymnasium full of innocent college students to listen to her sing all four verses [Yes! The national anthem has four verses!] before a basketball game.) When the national anthem is sung, you usually see five groups of people: (1) The people who are visibly annoyed that they have to stand and remove their caps; (2) People who are so bored that they are leaning on the seat in front of them to keep from passing out; (3) People corralling screaming children in an effort to not draw attention to their disrespectful brats; (4) People who just don’t give a shit and are playing with their phone, talking, slurping on a hot dog, etc; and (5) The white guys over 60 who are pissed at the people in the other four categories. These same white guys are usually very surly over the fact that people are not standing up straight, not placing their hands in the right spot over their chests, not standing with their feet together, etc. In the end, no one is happy. Rather than uniting fellow Americans, the song usually just irritates people for varying reasons.

Finally, by having the national anthem sung at more than a million sporting events in the U.S. every year, we are inevitably subjected to the many performers who manage to screw up the lyrics, destroy the song with a bizarre interpretation, or just flat out disrespect it.

Some will disagree with my sentiments here and simply say, “What’s the big deal? It only takes a couple minutes. Besides, it’s nice that we can take a moment and collectively honor our country, its history, and our service members.” Here’s my response: People go to sporting events to watch a game. They don’t go to honor their country. If people want to honor their country, there are a million ways to do that (e.g. join the military, donate time and money to service-related organizations, hang a flag, attend patriotic events and parades, put a sticker or magnet on your car, wear patriotic clothing, become involved in civic activities, run for office, celebrate national holidays, write to newspapers about patriotic issues, send a care package to someone you know in the military, hold patriotic events at your home such as 4th of July BBQs, root for American teams in international competitions, help out a fellow citizen, take time to learn about the nation’s history, visit a local museum, travel to different parts of the country such as Fort McHenry in Baltimore where the “Star Spangled Banner” was originally written, etc.). Unfortunately, most of these activities require at least minimal effort from people. They would rather show up to a ballgame, be told when to stand, and then wait for their cue to think about their country. Then they feel like they’ve fulfilled their civic duty. It’s pathetic.

By the way, these sentiments also extend to the singing of “God Bless America” at every 7th inning stretch. Just like the national anthem, this was a temporary thing that just never went away. Prior to 9/11, no one sang “God Bless America” during the 7th inning stretch. But as a symbol of unity, we started. And then we never stopped. Twelve years later we’re still engaging in this irrational ritual. A few years from now people will think that’s how it’s always been, and any suggestion of discontinuing the tradition will be met with fierce opposition by America-loving patriots.

I believe there’s a time and place for the national anthem. If an athletic organization wants to lead the national anthem at a game that falls on the 4th of July, or Veterans Day, or the anniversary of D-Day, I say go right ahead. If a sports team wants to select a day to honor active duty service members or wounded warriors, that’s great. Make the national anthem part of the festivities. That makes sense. But singing the national anthem at every single sporting event is simply unnecessary. If you watch frequent sporting events, it starts to get annoying. And once you’ve started to annoy people, any chance of appealing to national pride is lost. When the national anthem is saved for special events, it remains special. But singing it at every sporting event – from professional sports all the way down to middle school scrimmages – makes the song virtually meaningless.

So the next time I’m at home gearing up for the big game, and Ruben Studdard breaks into the first few notes of the national anthem, I’ll push mute and mosey to the fridge to grab a beer. But I’ll still love America.

– Nathan

In Defense of Common Core: A Battle Guide to Defending Education’s Latest Innovation

Posted in Uncategorized on June 3, 2014 by thebluebros

In the early nineties, a movement began in the states to adopt what was called a “standards-based education.” For example, when I taught 8th Grade Social Studies in California from 2002 to 2005, I was provided a list of subjects and benchmarks I was expected to cover. As a teacher and devoted fan of history and civics, I was pleasantly surprised with the content of these standards (which can be viewed here, beginning on page 33). It is clear the standards were created with a tremendous amount of input, thought, and differing perspectives.

The standards-based movement was designed for several worthwhile reasons including: (1) uniform standards across a state ensure students get all of the important information, as opposed to perhaps learning about the War of 1812 four years in a row, but never getting to the U.S. Constitution; (2) provides guidance to teachers who may have felt rudderless or wished for some direction; (3) assisted with the manufacturers of textbooks so that a book could be designed to match the standards; and (4) makes comparisons of schools within the state simpler (more of an apples to apples comparison) so that we can learn from those schools doing well and provide more support to those schools doing poorly.

Taking a more personal perspective, I am sure anyone reading this can think back to a time in his or her own education when standards would have been useful in one’s own life. My 6thth grade Social Studies was essentially a year of crossword puzzles, hidden pictures, and hanging out with my friends. In 10th Grade Social Studies, we spent every Friday (20% of the instructional time) playing a trivia game. It was a lot of fun (at least for those few 16-year olds into trivia), but had little educational value. I remember my 11th Grade Spanish II class where literally the entire year was spent socializing and then every so often everyone in the class would find the one person who actually completed her workbook (thanks, Sunny!), and we’d copy her answers. By the way, I can’t speak Spanish. When I taught school, I had a colleague who chose to ignore the state standards and spent six weeks doing a 9/11 unit. An important topic to be sure, but I know that meant he never got to Reconstruction, the Industrial Revolution, the Women’s Rights Movement, or World War I. So standards are, if nothing else, a quality-control mechanism. There are now measurable consequences for teachers who utilize such reprehensible lesson planning and/or inadequate pacing. I suspect that in a state relying on state standards and follow-up testing, no administrator would allow such practices to continue. That is progress.

In 2009, the standards movement took a leap forward with a national movement to create national standards, now known as “Common Core.” These efforts were spearheaded by the National Governors Association and the Council of Chief State School Officers. These groups took on the painstaking task of creating a national set of standards in the areas of math (viewable here) and English (viewable here) by reviewing each state’s standards and taking what appeared to work best; interviewing countless teachers and other educational experts; and collecting almost 10,000 comments in two public comment periods. Then, once the standards were drafted, they were submitted to the states for approval (for a detailed account of how the standards were crafted, go here). To date, 44 states and Washington, D.C. have chosen to adopt these standards.

This is exciting! There are many benefits we expect will come about from this. Those include: (1) We will be able to reliably compare all participating states’ education systems. This will allow us to study and emulate those states that produce better results, and assist those producing worse results; (2) Costs to states of standardized testing will shrink considerably as no longer will each state need to create its own tests; (3) By taking the best of the best standards from each state and creating one master set, it appears we will have a single set of standards better than any one state produced by itself; (4) A shared set of standards will make it easier for educators to share curriculum and teaching strategies across the country; and (5) It will assist families that move around the country a lot (e.g., military families) so that their children will be able to pick up pretty close to where they left off in their last school.

While there have been many voices singing the praises of Common Core, I will site just one. Professor William H. Schmidt of Michigan State University described Common Core by saying, “Rather than a fragmented system in which content is ‘a mile wide and an inch deep,’ the new common standards offer the kind of mathematics instruction we see in the top-achieving nations, where students learn to master a few topics each year before moving on to more advanced mathematics.”

Despite these exciting prospects, there is a large and vocal movement in this country that has made it their crusade to discredit the Common Core movement and scare states into opting out of Common Core.

Before proceeding, I will point out that one purpose of this blog is to arm thoughtful people with information to take on loud know-nothings whom we all have the misfortune of coming into contact. This is a challenge. It is a lot easier for a person to form opinions and make up statistics than it is for a person to truly become knowledgeable on a subject. This dichotomy is especially clear with regard to education, a subject prone to people assuming a self-righteous heir because they sat in a public school for 12 years—thereby making them an expert.

The following represents the attacks you can expect to hear against Common Core and why those arguments are weak. The most shared characteristic of the attacks against Common Core is that they are vague and filled with scary language. It really is fear politics at its worst. I will add that I did not create a single one of these arguments as a straw man. Each argument comes from articles criticizing Common Core and encouraging people to fight its implementation. Without further ado, here are the arguments against Common Core:

Argument #1: Common Core was created by “federal bureaucrats.”

The statement is not true. The federal government played no role in the development of the standards. Common Core was a movement led by state leaders, including governors and state education experts, who worked from existing state standards and interviewed teachers, parents, and experts from around the country. Creation and implementation of Common Core has been funded in large part (to the tune of $170 million) by the Bill and Melinda Gates Foundation—again, hardly federal bureaucrats.

Argument #2: Common Core disrespects teachers by telling them how to do their job and telling them how to teach, which will also stifle teacher innovation.

This is perhaps the biggest misconception about a standards-based education. Common Core tells teachers what to teach, not how to teach. To put it in education terms, Common Core represents content, not curriculum. Teachers are still able (and required!) to create their own curriculum for how they teach the information contained within the standards.

For example, the state standards I was required to follow discussed the importance of teaching the U.S. Civil War and certain aspects of the war on which my students should become knowledgeable. Nowhere did it say how I should teach it. I took it upon myself to turn my Civil War unit into a six-week role play in which the students marched outside; stood in formation to start and end class; assumed the identity of a Civil War person (some as spies); and countless other tasks. The kids learned a ton, and it was the most fun unit the class had all year. To teach civics, I had the kids watch the State of the Union address every year (even though it was always President Bush when I taught); had them form mock election teams for presidential candidates; and had them volunteer at local campaign headquarters of their choice in the evenings (for extra credit). Each of these activities fit into the standards I was required to teach, but the way in which I chose to teach those things was very much my own. At no time did I feel restricted or constrained by the standards.

Which goes to a more manifest point, what exactly do these people opposing Common Core want taught that is not getting taught? Would they prefer geometry be skipped? Or is there a new field of math they know about that isn’t being covered? If someone has a problem with Common Core, challenge them to provide specifics. Spoiler alert: they won’t be able to.

Argument #3: Implementation of Common Core will cost $16 billion over the next 7 years.

That sounds like a lot…but it isn’t. Here’s why. As a nation, we spend about $600 billion a year on public education. Assuming the critics of Common Core are using the correct number, $16 billion in additional costs over the next 7 years represents an increase in education costs of about ¼ of 1%.

The $16 billion figure does not consider that much of the costs will be for new computers for the school that the school likely would have, or should have, purchased anyway. The $16 billion estimate also fails to consider the cost savings to the states which will no longer need to create their own tests every year.

The other problem with the financial argument is that it makes no consideration for the possibility that Common Core may produce tremendous results. If that is the case, we would surely be willing to pay much more than ¼ of 1% of our education budget to make it happen.

Argument #4: The transition to Common Core standards is going to be difficult on teachers, and will encourage some to leave the profession rather than change how they teach.

This critique is not entirely without merit. Public school teachers have to put up with a lot of shit. No question. It seems every year they have a new hoop to jump through or some new fandangled program they have to work through. I get it. I lived it. It’s not fun.

With that said, let’s step back for a minute and understand why things keep changing in education. It is because we have the most expensive education system in the world that produces a result that pleases no one (a system where we are average or below average in math, reading, and science as compared to other industrialized nations). A new way of doing things means someone has a new plan for improving an expensive system that is not working as well as we would like. Changes should come and we should welcome those changes. Educators are quick to point to those changes that were tossed aside, but no so quick to recognize those changes that have made real improvements. For example, I know that after the Columbine shooting in 1999, bullying awareness became all the rage. Teachers and students were required to sit through classes and seminars and talk about it in their classrooms. Well you know what? It made a positive difference. As a middle school teacher, I saw those changes. As a parent, I see those changes in my children’s school. That is a success story.

We need to all recognize that every part of our society and life is (or at least should be) a social experiment. We should always be trying new ways of doing old things. If a new way of doing something doesn’t work (as Common Core may not work), we toss it aside. If it does work, we incorporate it into our lives and look for the next best way to build a better mousetrap. If an educator does not approve of change or innovation and wants to move on, I say, “Don’t let the door hit you on the way out.” This does not mean legislators and policymakers get to abuse teachers, but teachers need to appreciate that the field in which they work, is one that will constantly require tinkering. The only truly crazy plan is to change nothing about an education system that makes no one happy.

Argument #5: Specific problems with the standards.

This is probably the rarest of arguments against Common Core because it requires an actual reading and consideration of the standards. For example, some have argued that Algebra I is being taught in the wrong order or that the English standards do not place enough of an emphasis on the great classics. To this argument, I say, “Welcome!” While reasonable minds can certainly disagree about the content of each standard within Common Core, a disagreement over the precise language of a particular standard is not an argument to scrap a standards-based approach to education. Rather, I would submit that these are precisely the types of discussions we should be having every year. These standards should be tinkered with as the years pass, and we obtain more information and feedback.

Argument #6: Common Core standards are too vague and broad.

This is an example of the Common Core opponents trying to have it both ways. Which is it? Are the standards taking over the lives of teachers, or are they too vague and broad? The answer is neither. The standards are quite specific with respect to content to be taught, but intentionally vague with respect to curriculum (i.e., how the content is to be taught). I think most people would agree that is a reasonable approach.

Argument #7: The Common Core standards are an averaging of the various state standards. This means that some states are going to be dumbing down what they are teaching.

This argument misrepresents how the national standards were adopted. An average was not taken of the existing standards (I am not even sure how that would be possible). As stated above, Common Core attempted to take the best of the 50 states’ standards and create one model. To look at one and say it is easier than the other, is misguided. I would challenge anyone to look at the Common Core standards and ask yourself if you would be unhappy if your child only learned what was in those standards. There is a ton of information in there. If your son or daughter mastered the Common Core standards by 12th Grade, they would be ready for college, without question.

Argument #8: Common Core requires that Americans lose more privacy as we turn over even more information for the federal government to data mine.

Are you scared? There was a lot of spooky language in there? Data mine? Loss of privacy? Federal government? What these people are referring to is that the results of student information (e.g., demographics, test scores) will be tabulated and studied. Remember though, this information is already being tabulated by your state. State adoption of Common Core simply means the information (presumably without identifying fields such as name, address, phone number) will be shared amongst researchers and education experts at private institutions and all levels of government. This is not so Big Brother can…actually, I am not sure what nefarious plot could be carried out with children’s test scores.

Information is key to understanding what works in education and what does not work. The more information we have the better. If a person is concerned this information could be used in some way that would adversely impact our rights, let’s talk about that. Let’s put appropriate safeguards in place. The solution is not to stick our heads in the sand on education, and keep all of us willfully ignorant in order to protect us from a paranoia-induced bogeyman.

Argument #9: Common Core forces teachers to “teach to the test.”

This is an argument I have never understood. The test reflects the standards the students are to learn. That being the case, yes, please teach to the test. As Comedian Daniel Tosh reminds us, some people that do poorly on tests need to be reminded that tests are that part of education where we find out what you know. Unless a person has a mental handicap or impairment, teaching to the test and teaching the standards (which I encourage everyone to review—links provided above) are the same thing, and both good. If a teacher is not teaching to the test, what are they teaching to?

People also complain (perhaps justifiably so) that our children are being tested too much. That may be the case, but that does not change because of Common Core. Students are already being tested a great deal, and Common Core actually attempts to address this problem by introducing innovative testing that will ask students for not just the answer, but also how they arrived at the answer and to defend the answer. This is another area that we can expect will be constantly tweaked so as to refine Common Core and make it more effective.

Argument #10: Common Core ignores the root of poor student performance, which is poverty.

This is the one criticism of Common Core that truly holds merit. It is completely true that poverty is the biggest indicator of a poor education and Common Core does nothing about that. With that said…so? Are we really going to take the position that because we can’t fix every problem with education that we won’t fix any problem with education? While eliminating poverty would be great, and something we should always be striving to do, let’s not wait to solve that behemoth before tackling others.

Argument #11: No fair. States were forced into adopting Common Core against their will.

Not true. No state was forced to adopt Common Core. The federal government cannot force a state to adopt educational standards. What the federal government did do was tell each state that it would be easier to obtain federal grants if the state adopted Common Core. Was it a bribe of sorts? Sure, just the same way the federal government tells states that if they want highway dollars, they had better make their minimum drinking age 21. This is nothing new, and it is not a huge deal. In fact, five states have not adopted Common Core and one state (Indiana) adopted it, but then changed its mind and opted out—something any state can do at any time.

The Crazy and Dishonest Arguments: Common Core prohibits free thinking; This is an attempt by Obama to indoctrinate kids; This is another step in our march towards Communism; etc.

To anyone who actually entertains this lunacy for any increment of time, I encourage you to actually read the standards (again, math here, and English here). I am sure you will find them quite reasonable, and follows an outline of study you would be fine with your children learning.

The Funny Argument: Standard is another word for “like everyone else.”

Yes, because when I taught the Revolutionary War, I was quite upset that I knew tens of thousands of teachers were teaching the same subject matter that year. I wanted my own unique historical events to teach, just as I assume the math teachers wanted their own sets of numbers and the English teachers wanted their own alphabets. Teaching is so boring when I have to teach the same stuff as everyone else.

More seriously for a minute, this goes back to the content versus curriculum distinction…a distinction that matters a great deal. Everyone learning to read does not make everyone the same. Quite the contrary is true. Education provides people with the tools to think critically, reach their full potential, and lead happy and successful lives.

The “Puke-Inducing” Argument: “The Common Core Standards’ stated aim—‘success in college and careers’—is at best pedestrian, at worst an affront. The young should be exploring the potentials of humanness.”

I am not kidding someone actually wrote this. You can see it with your own eyes here. I have nothing to add to this. I just thought it was worth sharing so those advocating for Common Core can see the degree of self-righteousness and misplaced self-assuredness they are up against. 

It is my hope that this piece has provided you with two valuable things next time you hear an old person rail against Common Core (they are usually old). The first is the knowledge to remain calm in the face of such terrifying claims that the sky is falling, and the second is the knowledge to rebut these misplaced concerns. Good luck.

– Dylan

Recognizing Defeat: Liberals’ Passive Response to The Federalist Society Isn’t Cutting It

Posted in Uncategorized on April 9, 2014 by thebluebros

Conservatives have unquestionably mastered the art of nominating federal judges and Supreme Court justices who will reliably decide cases that reflect a president’s conservative political ideology (as discussed in my last piece). So what hope do liberals have to counter such an effective effort by conservatives to create a farm system for far-right legal “scholars” who will reliably side with them on all of the key issues? Unfortunately, not much.

The liberal response to The Federalist Society came in the creation of The American Constitution Society, or ACS—not be to be confused with the much-loathed student loan company, or the American Cancer Society, or the American Chemical Society, or any one of the other hundred organizations that share this acronym. To many people’s wonderment, liberals managed to come up with a name even more boring and milquetoast than “The Federalist Society.”

I don’t want to be too hard on ACS. It does some good in that it attempts to put forth a progressive legal perspective in a political system that had essentially allowed The Federalist Society to be the sole legal voice for 20 years. With that said, ACS is plagued by problems beyond just having a really bad name. As a current member and one-time leader of an ACS student-chapter, I have some knowledge of these problems.

First, it took liberals 19 years to respond to The Federalist Society. ACS was not founded until 2001. ACS is quickly trying to play catch-up.

A second problem ACS faces is that the organization is not exactly catching on with the young folk. When I started law school in 2005 at Lewis & Clark Law School in Portland, Oregon, I was shocked to learn ACS did not even have a student chapter. Despite being one of the most liberal law schools in the country in one of the most liberal cities in America, it had a Federalist Society Chapter, but no ACS chapter. I established one my first semester in law school, and it’s existence has barely sputtered along since.

Third, there is a very strong feeling among many in ACS’ leadership that ACS should not allow itself to be the liberal version of The Federalist Society. Why?! There has been no single legal institution in this country that has so significantly affected the judicial debate as The Federalist Society. Liberals need to recognize when it has been beaten. ACS needs to examine what The Federalist Society has done and emulate, emulate, emulate (to the extent emulation can be done ethically).

A fourth problem with ACS is that it is not rabidly liberal the way The Federalist Society is rabidly conservative. If one wants to meet with rabidly liberal attorneys (and I mean this in the most endearing of ways), he or she should go to a meeting of the National Lawyer’s Guild. These people know how to party. In a system where we often split the difference, liberals lose ground when we have moderate/left organizations like ACS working with rabidly right-wing organizations like The Federalist Society.

The fifth and most significant shortcoming of ACS is that Democrats, most notably the Obama administration, are not behind it. Back in 2008, shortly after Obama was elected president, he chose an ACS board member, Eric Holder, to be his Attorney General. Supporters of ACS were beside themselves with glee. The Washington Post even ran a headline that read, “Legal Organization May Become Influential Beyond Its Dreams.” ACS never realized this liberal utopia because Democrats, particularly Obama and Holder, failed to utilize ACS’ resources or embrace its philosophies in nominating federal judges or applying the law.

When it is suggested within ACS circles that ACS should possibly act as a clearinghouse of sorts for federal judges, like The Federalist Society has become for conservatives, the idea is quickly and harshly dismissed. The sentiment is that such crude litmus tests are beneath the regal institution that is the law. I am sorry, but I like to win, and by win I mean advancing human rights, workers’ rights, civil rights, consumer rights, and rights of the accused. Our current system in which we have a Democratic president nominating pro-corporation judges is not acceptable. A full 71% of President Obama’s nominees to the federal bench have practiced law primarily for corporate or business clients. Just 3.6% of Obama’s nominees have a background in public interest. Why did neither of President Obama’s Supreme Court nominees have any connection to ACS? Most significantly, where is ACS now that President Obama has largely relegated it to nothing more than an interesting and isolated think-tank? We saw how The Federalist Society mobilized against President Bush when he deviated even slightly off course. While I would never advocate such militarism on the part of ACS, a little private and public pressure would be appreciated. Plus, if young attorneys knew that membership in ACS could be a big plus in review for nominations to federal positions, perhaps membership and interest in the organization would soar.

So while Republicans long ago mastered the art of packing the judicial branch of government, and are eagerly waiting in the wings to renew their court-packing efforts, Democrats remain unable and unwilling to martial the fortitude to do the same. This decision will likely ensure that regardless of how successful Democrats and liberals are at the ballot box, much of their work and progress will be undone by a far-right wing judiciary who is not too proud to win.

– Dylan

Packing the Courts: Republicans’ Proven Recipe for Success

Posted in Uncategorized on March 19, 2014 by thebluebros

Image

When I was 19 years old, I wrote a college paper entitled, “Packing the Supreme Court: The Impossible Pursuit.” In retrospect, I got the analysis completely wrong. “Packing the Court”—i.e., filling it with votes that reliably align with the president’s political ideology—is a fairly simple affair these days. The mistake I made back in 1998 was to review all Supreme Court justices since the 18th Century. Over the past 30 years, however, changes have removed the uncertainty of selecting federal judges that are as ideologically driven as the president selecting them—particularly if that president is a conservative.

History likes to remind us of colossal mistakes presidents have made on the Supreme Court. Most famously (and wondrously for liberals), President Eisenhower put liberal icons Earl Warren and William Brennan on the Supreme Court. Eisenhower even said with respect to Chief Justice Warren, “[He was] the biggest damned-fool mistake I ever made.” More recently, President George H.W. Bush certainly screwed up with his pick of moderate Republican Justice David Souter in 1990 (again, to the glee of Democrats). While the seeds of effective court-packing had been planted a few years earlier, it was the far-right’s disappointment in Justice Souter that resulted in affirmative steps being taken to make sure such a “failure” never happened again.

The process of nominating a Supreme Court justice (or really any federal judge) was revolutionized with the creation of The Federalist Society in 1982. The Federalist Society is a legal organization that works to promote conservative legal theory and individuals who share its beliefs. It professes to want judges who “say what the law is, not what it should be.” Or as Chief Justice Roberts incredulously stated at his Senate nomination hearing, “My job is to call balls and strikes and not pitch or bat.” Of course, if the process of deciding cases was so black and white, we could just do away with our nine justices and obtain the proper rulings with what I imagine would be a pretty simple computer program. That, however, is not the case. Black-and-white cases get resolved by lower courts. Cases that get to the Supreme Court are oceans of grey punctuated with vast seas of complexity.

The Federalist Society espouses everything from bumper sticker slogans such “preserving freedom” to advocating for complex legal principles such as “originalism” and “strict constructionism.” Despite all this window dressing, The Federalist Society is essentially a legal club for really conservative people who believe: corporations are people; free-markets are infallible; police conduct is not to be questioned; workers are just cogs in our economic machine; and those convicted of crimes deserve few rights.

The Federalist Society does not boast a huge membership. Its website claims to have 30,000 attorney members. There is no way to verify this number, but I suspect it is highly inflated. Even if we assume that number is accurate, it means only 2% of attorneys in this country are members of The Federalist Society—a statistic that should not be surprising. Not only does The Federalist Society represent fringe legal beliefs, but attorneys, when compared to the general population, tend to be more liberal and more Democratic.

Despite its small size and fringe beliefs, The Federalist Society has become a force to be reckoned with in American politics. Since the “mistake” of Souter (who turned out to be a very thoughtful justice with the highest of integrity) 24 years ago, every Republican appointee on the Supreme Court has been a member of the Federalist Society: Clarence Thomas, John Roberts, and Samuel Alito. The only Republican nominee in the past 24 years who was not a member of The Federalist Society was Harriet Miers in 2005, and the conservative establishment stopped that nominee dead in her tracks. The conservative opposition was led by The Federalist Society who launched a whisper campaign that led to President Bush withdrawing Ms. Miers as a nominee and replacing her with a card-carrying member of the Federalist Society, Samuel Alito. When rumors started circulating that President Bush was going to appoint non-Federalist Society attorney, Alberto Gonzales to the Supreme Court, the conservative blogosphere ran with the meme: “Gonzales is ‘Spanish’ for ‘Souter.’” In conservative politics, one does not deviate from the playbook.

Conservatives have now achieved a Supreme Court that has a 44% membership rate in The Federalist Society (4 out of 9 justices: Scalia, Thomas, Roberts, Alito) despite that organization representing just 2% of the legal community (at best!). Should our next president be a Republican, that number will surely surpass 50%.

Analyzing lower court statistics is much more difficult as much less is known about the background of each federal judge. Further, The Federalist Society does not make public every member of its organization, and judges have a vested interest in concealing membership in controversial organizations like The Federalist Society. There can be no question, however, that membership in The Federalist Society makes it much more likely that a conservative attorney or judge will be appointed or promoted during a Republican administration. Whether membership in The Federalist Society is actually a requirement is not yet known, but the possibility is frightening.

So when legal scholars or naïve college students try to tell you that court-packing is too hard, remind them that not only is it possible, it has been accomplished. Democrats and moderates should live in fear of any Republican president as that person will unquestionably rely on The Federalist Society to dictate the president’s nominees to the federal bench (or at least be strong-armed by them). The American People got lucky with Earl Warren, William Brennan, and David Souter, but there is every reason to believe that will never happen again—at least with respect to a Republican president.

– Dylan

Christie is Latest Victim in System that Values Style over Substance

Posted in Uncategorized on March 3, 2014 by thebluebros

What we settle for in our elected leaders shocks the conscience. People actually defended George W. Bush by saying (apparently with some level of seriousness), “Well, you may not agree with what he does, but at least you know where he stands.” Bush actually repeated the same line to defend himself.

In what other occupation could a worker defend his incompetence by citing his honesty? Could a bus driver with three on-the-job DUIs tell his employer, “You may think I conduct my job in an unsafe manner, but at least I’m not hiding my problem?” Or could a chef tell his patrons, “The food is overpriced and undercooked, but we expect you will become a regular patron of our substandard establishment because we are straightforward about our lack of quality and high prices.” Of course not. Only in politics can a worker completely fail at his job, but still hold his head high because he claims to hold some ill-defined moral high ground.

As politicians get worse, what we will accept as a good leader just keeps sinking with them. Take Chris Christie. Here is a guy we can’t even say we know where he stands on most issues like we could Bush. Governor Christie is still placed on a pedestal, however, because he comes across as a straight-shooter. He may be incompetent, or perhaps not even a straight-shooter, but he appears to be a straight-shooter and that’s enough. That is how desperate we are to find a redeeming quality in our elected leaders. Or to put it another way, people are willing to accept a liar if the liar states those lies in a straight-forward manner.

George Carlin had a bit after the 1996 election in which he said people liked Bill Clinton because Clinton “was honest about being completely full of shit.” While Mr. Carlin was saying this presumably to get a laugh, it seems that Governor Christie has successfully personified the joke.

One can readily observe the problem with a society that relies on such superficial grounds when determining who to throw its political capital behind. When a politician is exalted for being a straight-shooter and little more, the moment it comes out that said politician acted in a manner that was not straight-forward, the large but vacuous support for that candidate collapses. We have seen that with Governor Christie. Two weeks after the bridge scandal surfaced, the governor’s job approval rating fell by 20 points, and that was a few weeks ago. I think it’s safe to say that number has not gotten any better for the governor. A more recent poll showed that nationally, Governor Christie’s two-point lead in December over Hillary Clinton in a hypothetical match-up had become a 21-point lead (!) for Hillary Clinton.

In case you wanted a visual illustration of just how on the outs Governor Christie is, I recently came across this laugh-out-loud photograph of the governor a few weeks ago with Governor Jan Brewer, Governor Andrew Cuomo, and Mayor Bill DiBlasio. This is such a great depiction of what political kryptonite looks like.

Image

Governor Christie channelling his inner social pariah.

In a more mature republic, our support for elected leaders would be multi-faceted and complex so that if a candidate did something you didn’t like or was caught doing something shady, his or her career would not instantly vanish. Instead, that revelation would become just one factor of many in our analysis of the candidate. And barring a truly heinous act (e.g., abuse of a child), one single act or error in judgment would not forever banish the person from elected office.

We don’t have that. Instead we have an electoral system that builds political superstars overnight and destroys them the next day (remember the 2012 Republican Primary?). And those politicians that thrive in such a system, die there as well. Chris Christie is quickly finding out just how true that is.

– Dylan