Think Progress Lied About Roy Moore Child Sex Abuse Decision

Think Progress’s “analysis” (being repeated everywhere now) of Roy Moore’s dissent in Higdon v. State is so egregiously false that my heart was racing in indignation over it for at least a few minutes. For the record, I’m a moderate liberal Democrat who detests the politics of personal destruction, and am increasingly alarmed by other common features of contemporary public political discourse that are actively shredding the fabric of American society, destroying too many of us “regular” folks’ filial, family, and community bonds in process.

I have to get to my paying job soon, so I’m just going to throw down a quick and dirty critique for now. Hopefully I’ll get a chance to flesh it out later (we’ll see.)

Higdon v State, the case ThinkProgress referred to, was an appeal involving charges of:
(1) 1st degree sodomy of a kid <12, AND
(2) 1st degree sodomy by forcible compulsion
These charges arose from incidents involving a 17 year old (minor) perpetrator & one child victim (BTW, ThinkProgress, the child victim was 4, not 12, as you “reported.”)  Juvenile perpetrator Higdon was convicted on BOTH counts. He appealed both convictions to the State Court of Appeals. (For readers less familiar with legal and judicial process and systems, since Lord knows I didn’t learn this stuff until law school, that’s the intermediate court between the trial court level and the State Supreme Court.)

On review, the State Court of Appeals UPHELD the conviction as to Charge 1. So that felony conviction stood. But they overturned the conviction on Charge 2 based on a 2002 State Supreme Court decision in a case called “Ex Parte J.A.P.” (initials used there as Defendant was also a minor child.) That case established precedent that limited the scope of what's defined as "forcible" compulsion when the perpetrator is also a juvenile.

The State appealed the Court of Appeals decision as to Charge 2. Higdon did not appeal the decision as to Charge 1 (1st degree sodomy of kid <12), so that conviction stood.  In other words, regardless of what the State Supreme Court decided on appeal, the juvie perp was STILL going to be a felon & likely a lifelong registered sex offender due to their abuse of the victim.

So the Supreme Court overruled the Court of Appeals on the legal applicability of Charge 2, overruling Ex Parte JAP.  Justice Moore *concurred* (AGREED WITH) that interpretation and result.  He dissented on a more narrow point of law, which I don’t have time to get into.

So here’s the WORST irony of all.  You know that Ex Parte JAP case?  Guess which Court of Appeals Judge wrote that 2001 opinion finding that a minor can engage in forcible compulsion through an implied threat? A view the 2002 Alabama Supreme Court rejected, but came around to in 2015 with the Higdon decision?

ROY MOORE. Yep. THAT Roy Moore. Then-Court of Appeals Judge Roy Moore was right on that matter of law at least 13 years before the State Supreme Court “got it.”

Again, read the decision & dissent for yourself here. Roy Moore’s dissent even mentions that he authored the 2001 Court of Appeals decision in J.A.P. and discusses how it aligns with Alabama Supreme Court’s reasoning in ruling on Higdon.

I'm sick of political spinmeisters and their evil BS smears. Enough already.

Donald Trump: The Man. The Myth. The Fraud.

Donald Trump is not who he says he is.

Trumps are gonna trump / Gage Skidmore, CC BY-SA 2.0

C'mon, GOP voters.  

You can’t possibly be serious about nominating Donald Trump for President.  I know plenty of you are (reasonably) fed up with politicians who say one thing then do another.  But this man is a compulsive liar.  One analysis found that he lies, on average, once every five minutes.  He lies so much, journalists say they can’t even keep up with fact-checking it all.  His positions on major issues shift right along with his ever-changing moods.  Trump is quite possibly the least predictable Presidential candidate we’ve ever seen.  His word is infinitely less reliable than what comes from the many other politicians who’ve disappointed you so much.

“But,” I can hear you saying, “But he’s a successful businessman!  And a tough guy!  And super smart!  He tells it like it is!  He cares about working folks and putting a stop to illegal immigration!  He knows how to hire the best people!  He’ll bring jobs back to America!  And he’s even a Christian!  He’s just what we need in the White House!"

Baloney.

Donald Trump is none of the things he claims to be.

~~~

Trump is not an honest businessman.  He is a hustler and a con artist. Between alleged pyramid scheme Trump Network TM nutritional supplements, real estate education scam Trump University, shilling for nine years for pyramid scheme American Communications Network, and who knows what other as yet undiscovered scam, Trump has swindled (or helped swindle) tens of thousands of honest Americans out of their hard-earned money.  These were folks who were just looking for legitimate ways to make money, and who trusted these fraudulent business opportunities because Trump was involved with them. 

~~~

Trump is not free from special interest influence, nor is he “self-funding” his campaign.  In reality, he owes more than $265 million to a bunch of big banks, and it may be much more.  Trump has donated a mere $250,000 to his campaign, and has lent it more than $17 million.  Lending – rather than donating – the cash allows the campaign to raise money to repay him before Election Day.  His manager said he won’t seek repayment of the loan – but if that were true, wouldn’t he just donate the funds?  Trump and his staff have also told major donors they will start aggressively fundraising once he gets the nomination.

I don't believe I have been given any credit by the voters for self-funding my campaign, the only one. I will keep doing, but not worth it!

— Donald J. Trump (@realDonaldTrump) February 2, 2016

Iowa GOP voters were right – Trump deserves no credit for “self-funding” his campaign

Hey, Ted Cruz: An Impotent SCOTUS Makes The Founders Cry

Ted Cruz / Gage Skidmore, CC BY-SA 2.0

That fine defender of the United States Constitution, Senator Ted Cruz, has spoken.  Apparently we owe it to Justice Scalia's memory to ensure that his seat on the Supreme Court remain empty for 11 months or longer. 

Okay.  Let's say we did that.  On close questions, we'd be looking at a lot of 4 to 4 decisions - meaning the Court would be unable to actually issue binding opinions on the most controversial matters that come before it.  In legalese, that scenario would reduce the Supreme Court of the United States to a nullity.  In plain English, the Supreme Court may as well not exist.

I recall Justice Scalia being very, very concerned with The Founders' intent (at least, as he conceived of it.)  Am I the only who thinks, hey, maybe The Founders REALLY liked the ideas of three coequal branches of government, which provide checks & balances against one another's power?  Am I the only one who recalls those concepts being frequent topics of discussion at the time of our founding?

Certainly, a die-hard original intent fan like Senator Cruz recalls these points being repeatedly made within The Federalist Papers.  A 4-4 SCOTUS = one branch down, Senator Cruz.

Arbitration Clauses Everywhere - Where Are Better Options For Consumer Justice?

 Lady Justice at Alexandria, VA Federal Courthouse / Dan4th Nicholas, CC BY 2.0

The New York Times had an excellent piece yesterday about some of the problems with mandatory arbitration clauses.  For example, the agreement for your credit card probably requires you to take any dispute you have about the credit card company's actions to a "neutral" arbitrator and forecloses you from going to court.  So even if the credit card company illegally loads a bunch of fees onto your bill, you can't take them to court.

Three thoughts inspired by the piece:

1. Consumer contracts and corporate employment contracts have grown increasingly chock full of mandatory arbitration clauses for more than 10 years.  This isn't a new phenomenon, but it's still deserving of coverage.

2. The following is largely speculation based on my own experience representing consumers [and tenants] in court.  I'm not sure whether there have been any studies of actual court data to examine these questions.

Even in cases not barred by arbitration clauses, lower-level county courts (where consumer defense cases are usually tried) also tend to have pro-business bias.

This occurs in part because:

a) The laws they're applying tend to have a pro-business bias - even in "liberal meccas" like Washington state.

b) More lower court judges than not seem to assume that large corporations (including credit card companies) have fleets of high-priced (and thus super-genius) attorneys who help them make sure everything they do is at least *barely* legal.  They don't - more than a few of them engaged in pretty egregious limit-lowering and fee-loading behavior when the economy tanked, in some cases resulting in effective interest rates (APRs) in excess of 100%.  This was clearly in violation of federal law.  But because regulations implementing those statutes didn't specifically prohibit the behavior at the time, banks pushed the envelope to maximize their profit during a massive recession.

c) I suspect some of it also comes from class bias, as well.  A lot of Americans - especially in the professional class, which judges certainly are - have a tendency to assume that in any face-off, the person of higher socio-economic status is necessarily more trust-worthy than the other side.  Most folks probably don't think about it concretely, in those specific terms.  It's more of a subconscious response.

3. From an economic standpoint, class action suits seem an incredibly inefficient way to police bad corporate behavior. Bringing and maintaining such a suit is an extraordinarily expensive and labor-intensive proposition.  The result - the vast majority of the penalty extracted from the corporate offender (I say extracted because it seems most cases with a scintilla of merit settle) ends up going to attorneys' fees and other litigation costs, not to the consumers who were injured by the misdeeds.

And on the other hand, we do see a fair number of class actions against pharmaceutical and medical device companies that seem to be based on unrealistic expectations of perfect, fail-safe treatment for serious medical conditions, often premised on the notion that although a given risk was disclosed in the producer's literature, it wasn't made obvious enough.  At least, that's the impression I get from the numerous ads on TV urging people to call law firm X if they ever used medication Y or device Z.

If the point of our legal system is to make injured people whole again, class actions generally do a poor job of it.

But much the same can be said of DOJ and State AG cases - those government agencies also have to be reimbursed for costs and labor expended prosecuting violations of consumer law.  Does a $300 settlement share check repair the harm to a consumer's credit (and life) that occurred when Bank of America illegally foreclosed on their home?  NO, it doesn't.  But that's what folks are getting.

I don't have a better answer than those options, though.  If anyone has ideas, please share them below in the Comments section.

Black Oregon Deputy Sues WA Restaurant That Illegally Made Him Prepay For Breakfast

I wonder how the right-wing racism-denial industry will try to spin this one ...  on second thought, not really.  Obviously they'll just claim this is some guy with a victim mentality trying to get rich off a made up story, and yet another example of the scourge of abusive litigation and the need for tort reform.

But will they change their tune when they realize that the plaintiff is actually a Multnomah County Sheriff's Deputy?  Which will win out - their desire to support law enforcement no matter what, or the desire to discredit stories of real life racist treatment no matter what?

Full story at The Oregonian.

Professor Limbaugh Fail: Rush Don't Know Glass-Steagall

Screenshot from Limbaugh's site.

I don't want to shock anyone, but the self-declared "Mayor of Realville" apparently really doesn't know what he's talking about.

The day after the first Democratic presidential debate, Rush Limbaugh informed his audience that “Mr. Snerdley” had spent the morning hassling him for his ignorance about the Glass-Steagall Act:

Screen shot from Limbaugh archives

Not sure how “Professor” Limbaugh missed the six or so mentions of Glass-Steagall, and moderator Anderson Cooper’s good quick-and-dirty description to bring viewers up to speed, and all of the talking head discussion about it immediately after the debate.  But whatever. 

Bank of England Head Makes a Conservative, Economic Case for Action on Climate Change

Bank of England Governor Mark Carney has warned that firms and regulators can no longer avoid addressing global climate change / Photo: James Oxley, CC BY-ND 2.0

A few weeks ago, Bank of England Governor Mark Carney, who also chairs the Financial Stability Board, gave a speech at Lloyd's of London regarding the economic impacts and challenges of global climate change.  Given his audience, he also paid particular attention to how climate change has impacted the insurance industry, and will continue to do so.

Despite plenty of disagreement on the particulars he advocates, Carney made a compelling case for corporations and financial firms to stop fighting the acknowledgement of climate change and start modifying practices NOW in order to smooth the transition, reduce the ultimate cost of combating climate change and adapting to it, and avoid not just ecological catastrophe, but economic catastrophe, as well.

Conservative Portland Students Outraged That They Can’t Retraumatize Combat Vets

So this tale of “liberal speech suppression” here in Portland, Oregon (at PSU) is currently pinging around the conservative blogosphere/echo chamber, and even made it to the Fox News network:

The story has now been retold at College Insurrection, Accuracy in Academia, The Libertarian Republic, this Oklahoma City Fox affiliate, this Las Vegas talk radio station, AR15.com, on Reddit, at a mess of lesser-trafficked blogs, and even on some non-partisan & non-Fox-affiliated sites: ischoolguide.com, University Business and this Alabama ABC affiliate.

Best I can tell, the story hasn’t been picked up by any major talk radio hosts.  I suspect it’s only a matter of time.

The student, Christian Britschgi, and his fellow travelers are spinning the tale as a story of liberal academics suppressing conservative speech in order to shield fragile liberal students from the trauma of experiencing opinions they don’t like.  This is a common meme in conservative circles – if anyone points out that ad hominem attack and invective aren’t really intelligent methods of debate, they often get shouted down for being a wussy liberal crybaby. 

It seems pretty dang likely that the reality of what happened is far more nuanced than the story that Christian Britschgi is telling.  I'd like to see local media shed light on things.  Oregonian?  Willamette Week?  Anyone? 

I searched extensively for a more reliable, unbiased, LOCAL recounting of the story, but have come up empty-handed thus far.

As a former college political org leader on a MUCH smaller campus, one aspect of his story struck me as deserving greater examination.  Were Britschgi and his friend literally trying to arrange to table *now-ish* because they had a few spare hours?  Even at my undergrad campus of 1,200, 20-some years ago, you usually had to arrange for these things days ahead of time.

If the story is accurate as Britschgi tells it, and they weren't just shut down because they were trying to do something on the fly, this was a Portland State U FAIL.  Universities cannot sanitize students' speech in order to avoid triggering anybody, and really shouldn't be attempting to do so.  As someone who's experienced PTSD, when you're in it, anything and everything can be triggering.  JOYOUS FRIGGING SONGS WERE TRIGGERING sometimes.  It definitely sucks, but it's on those of us experiencing PTSD to do what we need to do to recover so we can function in society, not on society to become a grey, silent place so as to avoid triggering us.

There is a BUT coming, though.  It seems quite likely that the faculty & admin were NOT concerned about the message, but with graphic – if cartoonish – imagery on one of their posters – imagery that would be more likely to impact combat veterans with PTSD than others.   

Here's the poster. You be the judge.

                                                                      [MORE …]

To Rainbow-ify, or Not to Rainbow-ify, That Is the Question

I have a tendency to overthink things.  Most things.  Even seemingly minor things, like whether or not to put my Facebook pic through a rainbow-ification app to celebrate Friday's Supreme Court decision.

I'm a straight woman.  I've had, at best, had a marginal connection to the LGBT rights movement - participating in the occasional Pride parade / Pride booth / Welcoming Congregations concert / rights victory celebration isn't exactly heavy lifting.  So I grappled over whether to follow a number of my friends and rainbow-ify my Facebook profile pic.  

Would it smack of smug self-satisfaction (See?  I'm such a good liberal and generous spirit.  Yay me!  Oh, and nya nya nya nya nya nya "traditional values" people!)?  

Would it help - even a microscopic bit, as part of a sea of rainbow-ified profile pics - further bolster the spirit of LGBT folks I know, for whom Friday's Supreme Court victory was more deeply personal?  

Or would it maybe even help provide another face of ally-ship for less liberal folks who know me, [hopefully] think I'm a decent person, and weren't as enthusiastic about the Supreme Court decision yesterday?

On the other side of all of that [okay, somewhat neurotic] hyper-analysis, it seemed that if there was even a remote possibility that the simple act might give someone else an inkling of joy, why wouldn't I do it? 

But a caveat had to be put out there first - I'm not gloating, I'm not trying to prove I'm a good liberal, and I'm certainly not celebrating having done anything all that special or important myself.  I'm just doing a little something (and a very little something, at that) to show my support.  

Then it was on to the rainbow-ification!

Mumbai Paper Picks Up Bobby Jindal "Just Get Rid of The Court" Story

Bobby Jindal in 2011 / Photo: Gage Skidmore, CC BY-SA 2.0

Sources, including DC trade paper "The Hill," reported yesterday that Presidential candidate Gov. Bobby Jindal (R - LA) proposed abolishing the US Supreme Court: 

“The Supreme Court is completely out of control, making laws on their own, and has become a public opinion poll instead of a judicial body,” the 2016 contender said in a statement.  “If we want to save some money, let’s just get rid of the court,” Jindal added.

Obliterating one of the three co-equal branches of our government is a great idea.  

How the Two Major Parties Differ, and Why Who Appoints Fed Judges Matters, Exhibit 8,502:

"Supreme Court upholds housing discrimination law"  (USA Today)

No doubt the predictable howling erupted in right-wing media today over the Supreme Court's Inclusive Communities Project decision.  So I'll just note that, (1) the decision is in accordance with decades of Supreme Court precedent, and (2) the disparate impact claim is an important tool in combating housing discrimination.  As a practical matter, unless an individual defendant, an agent of a defendant entity, or a local lawmaker debating a challenged policy pulls a Donald Sterling and says a bunch of nonsense while being (lawfully) recorded - which rarely happens - intent can be *extremely* difficult to prove.  

Morgan Williams, General Counsel to the National Housing Law Forum, does a great job of explaining the decision - and its basis - here.  NAACP Legal Defense Fund Special Counsel John Paul Schnapper-Casteras also provides informative insights.  If you'd like to better understand the decision, give 'em a read - while both authors are intimately familiar with fair housing law, the pieces avoid the abundance of jargon that helps attorneys sound like they possess a special, magical sort of knowledge far beyond the reach of mere mortals.  

Note: some of the other commentators on SCOTUS-blog read Justice Kennedy (who authored the majority opinion) as worrying that the decision could be interpreted to place developers or public housing agencies in a damned if you do, damned if you don't type of double-bind.  But he's quite explicit in stating that neither the FHA nor this decision have that effect:  

How the Two Parties Differ, and Why Who Appoints Fed Judges Matters, Exhibit 8,501:

Supreme Court approves Obamacare subsidies on HealthCare.gov (CNBC)