Friday, November 30, 2018

A Farmer's Duty to his Neighbors

Hemp Smells. Farmers have rights. Neighbors need to realize they are in a farm zone.

That was yesterday's message.

Today, a Guest Post: A farmer has responsibilities.   

Thad Guyer represents an unhappy neighbor to a farmer in a farm zone. The neighbor says the neighbor's farm is a smelly, vermin-infected nuisance.
Amy's Kitchen pot pie

Warning to farmers.  A farmer's safe harbor is "common, customary, and accepted farming practices." This creates a huge highway of protected behavior, including noice, spray, dust, odor, and more. But not everything. 

A farmer in the Table Rock area allowed several local food manufacturers to dump daily truckloads of peach and pear orchard waste, plus food waste from Amy's Kitchen, on his property. The arrangement had the twin benefit of getting paid to provide a site for dumping waste while simultaneously improving his own soil as he tilled the rich organic matter into it.

On the surface this sounds like a sweet arrangement. 

Farmers customarily till organic matter into their soil to improve it, with manure being the time honored material. Surely food waste is better than manure. Win for Amy's Kitchen, win for the farmer, win for the farm soil. Right?

The problem was one of volume and timely tilling. At some point the farm transforms into a waste dump if too much material is deposited and if is not promptly worked into the soil and if the soil is beyond its capacity to break it down. A farmer has a right to improve his soil. He doesn't have a right to have a badly maintained solid waste dump in an EFU zone.  

The neighbor thinks it got way, way out of hand, with a huge stench, rats everywhere, and piles of food waste rotting.

As always, there are gray areas and room for disagreement.

Neighbors might object to multiple dump trucks coming and going. A farmer might counter that equipment coming and going on a farm is usual and customary because wagons and trucks delivering and shipping bulky items, sometimes at late and early hours, are the nature of farms. He just happens to have a successful farm business with lots of trucks.

Another gray area is the smell. Rotting pear peels and food waste smell--but so does manure the farmer might argue. Customary.

A third gray area is timeliness of tilling in organic material. The neighbor can say it is piling up. Still, the farmer can argue that farm animals drop manure throughout the day and no farmer collects and tills it in immediately. It sits there and decomposes and may be smelly while it does so. It is a matter of degree, not clear difference.

But at some point a farm transforms into a nuisance solid waste dump. When? When it attracts an unusual number of mice and rats? When it piles up deeper than manure would customarily pile up?  When its smell is the customary smell of a dump rather than the customary smell of a farm with animals?

People will disagree. 

At that point lawyers get involved and it can become very expensive for farmer and neighbor, both.

Neighbors have rights. But farmers have responsibilities

Guest Post by Thad Guyer

Attorney Thad Guyer

"Stone Cold Legal Immunity"

I'm litigating for a client now under Oregon's "Right to Farm" state law. It's an odor case but not from pot, although I do represent pot farmers and their landlords. Here's the low down.

Pot farmers-- like all farmers-- are immune from local laws and neighbor lawsuits. The statute is ORS 30.935
entitled "Prohibition on local laws that make farm practice a nuisance or trespass". It reads:

"Any local government or special district ordinance or regulation now in effect or subsequently adopted that makes a farm practice a nuisance or trespass or provides for its abatement as a nuisance or trespass is invalid with respect to that farm practice for which no action or claim is allowed under ORS 30.936 (immunity from private action based on farming or forest practice on certain lands) or ORS 30.937 (immunity from private action based on farming or forest practice allowed as preexisting nonconforming use)." 

It does not matter that pot farming and the odors were never contemplated when the law was passed decades ago. Indeed, the law protects farming practices that have not even been dreamed of yet. In its "may become" futuristic terminology the statute says:

(2) “Farming practice” means a mode of operation on a farm that:

(a) Is or MAY BE used on a farm of a similar nature;

(b) Is a generally accepted, reasonable and prudent method for the operation of the farm to obtain a profit in money;

(c) Is OR MAY BECOME a generally accepted, reasonable and prudent method in conjunction with farm use;

(d) Complies with applicable laws; and

(e) Is done in a reasonable and prudent manner.

A neighbor has one narrow opening for suing my farmer to abate nuisance odors. A pot farmer-- any farmer-- can be sued for failing to grow her pot in a "reasonable and prudent manner", or in manner that violates some other "applicable law", eg. environmental regulations. But, those other laws do not include anti-pot local ordinances since local laws cannot be passed or enforced to protect complaining neighbors or schools or country inns. Farming immunity is more powerful than local politicians trying to please neighbors. 

So, who decides a neighbor's or city attorney's claim that a pot farmer is not being "reasonable and prudent"? Yes, a jury, but there's a big, big catch on that: If the neighbor loses, he will be ordered to pay the farmer's attorney's fees, likely tens of thousands of dollars, an order that might then be made a lien on the neighbor's house if he doesn't pay up! Pot farmers have no trouble finding lawyers to defend any lawsuits against them. While the winning neighbor also gets reimbursed attorney's fees, due to the powerful legal immunity the pot farmer is armed with, it's the neighbors who will have trouble finding a lawyer.

Risk tip to my clients: Don't farm while stoned.

Thursday, November 29, 2018

Hemp smells. It's OK.

"Can't we get some balance between the hemp farmers and the neighbors who don't like the smell of it?"

Yes. We already struck that balance 36 years ago. Farmers can farm.

Besides, it is better than a dairy.

I have sympathy for the people who don't like the smell of hemp. It does smell.. People who farm hemp can assert that the smell is pleasant or that is faint, and I happen to agree. But I also acknowledge the obvious: it has an odor. 

Built next to farms. The farms are still there.
There will be ongoing public debate about balancing the wishes of neighbors and the wishes of farmers. We already had that debate in 1981-82. I happened to have been in the middle of it as the Chair of the Jackson County Board of Commissioners. We enacted the omnibus land use ordinance that described that balance.

Here is the ordinance: Click Here. The Exclusive Farm Use part starts on page 124.

Under state land use laws the county nearly stopped all divisions and development on farm lands in Jackson Country to protect the agricultural resource. It wasn't popular. It dramatically reduced the value of rural land and it reduced landowner flexibility. The landowner could no longer divide land between heirs. A landowner could no longer sell off some land to pay bills or retire. A landowner would likely not be able to build a house on it. All they could do is farm.

The ordinance described why we did this: "This district is intended to preserve, enhance, and stabilize agricultural areas within Jackson County which are being used for, or offer the greatest potential for, food and fiber production."

Rural landowners paid a gigantic price. Now, 38 years later, we see the results. There is green space all over the Valley floor. We have farms, vineyards, orchards. The area between Medford and Jacksonville is largely open. That area had been on track to be cut up into 5-acre "ranchettes" and suburban sprawl. Instead, the growth was directed toward the cities and the agricultural land is still agricultural. 

Many vocal rural landowners felt robbed. Their land itself wasn't taken, but much of its value had been. They were given two small consolation prizes: farm taxation, and protection of their right to try to farm their land.

The county required deeds to be placed on dwellings built near farms warning of pesticide and herbicide spraying, application of manure, smoke, odor, noise and much more. (full text below).

Southern Oregon, October 2018
The Oak Grove School was built amid farms. Formerly the land was planted in other crops, some of which created pollen which may have created allergies for staff and students; orchards which may have created smoke, sprays, and noise; farm animals which created manure smells; dust when plowed or harrowed. Now it is planted in hemp, which smells.

What is the balance between the farmer and neighbor? The farmer comes first. 

Ideally the farmer is a considerate neighbor and doesn't intentionally make things miserable for neighbors, and that is my near-universal observation about farmers. But hemp's odor is not an error or a failure of good farming practices. It is a feature of hemp. 

Milk comes from dairies. Cow manure is not an error on dairy farms. It's a feature there, too.

There was a dairy farm next to Princeton University, when I visited there in the late 1960s. It smelled when wind came from that direction. Students told me they lived with it, that it was the price of living in the glorious countryside.

What can Oak Grove School do? They can learn to live with it and ignore it and maybe even decide they like it. People here celebrate pears, but pear orchards have multiple nuisances we live with. Wisconsin calls itself America's Dairyland, and also America's Cow Manure Land, but they accentuate the positive. 

The school can try to wall themselves off from it with indoor air filters, which the local newspaper suggested, an imperfect solution. It codifies the premise that the smell is bad or dangerous--like forest fire smoke--and kids don't really avoid it because they play outside, then go home in that neighborhood. This is a dangerous precedent.

Shortly hemp may get replaced with something else that makes more money, e.g. almonds, hazelnuts, grapes, grain, or pumpkins. (There is no money in melons. I have determined that already.) Those crops will have their own nuisances. Almonds need bees. Some kid might get stung. Pear blossoms have pollen. We deal with it with a parade.

Bottom line: The hemp smell in late summer is new. People may simply get used to it and decide it is part of the natural environment. What the public, policymakers, and government officials should not do is think it is an intolerable nuisance to wall themselves off from, nor that they must make rules to strike a new balance between farmers and city folk living near farms. That balance has been struck and rural landowners lost. All they had left was the ability to farm.

Let them farm. Let the school be next to the glorious countryside.

Below: the full text of the deed declaration required by the ordinance:                 

"Declarant and declarant's heirs, legal representatives, assigns,and lessees hereby acknowledge and agree to accept by theplacement of this covenant or the acceptance and recording of this instrument that the property herein described is situated near orupon land zoned Exclusive Farm Use, and as such may be subjected to common, customary, and accepted farming practices such as the operation of an orchard, feedlot, or dairy farm, any of which may engage in pesticide and herbicide spraying, weed cutting,irrigation, application of manure, fertilizer, orchard heating,and any other accepted and customary farm practices. Said practices listed above ordinarily and necessarily produce noise, dust, spray residue, smudge smoke, vapor, and other types of visual, odor, or noise pollution which declarant accepts as a normal and necessary farming practice and as part of the risk of purchasing structure and living in a farm area. Jackson County shall be a party to this declaration, which cannot be removed or modified without written consent of the County."

Wednesday, November 28, 2018

Progressives are enjoying winning. Half a loaf is better than none.

"One simply can't be a Trump supporter and claim morality other than really low-level morality. What I'm grappling with at the moment is just how morally arrested people have to be not to vote."

                                                          Seattle Political activist

There is a change happening within the progressive left. They are lightening up.

The Blue Wave required wins in swing districts
Like most of his neighbors, the author of the above quotation thinks Trump is a danger to our republic.  Like many of his neighbors, he loves Bernie Sanders, and supported him through all of 2016.  And like many of his neighbors, he thought Hillary Clinton stole the Democratic nomination, and urged others not to vote for her.

That was then.

Trump has changed the political landscape on the left. Two years ago, it was OK to boycott. Just say "no" to Hillary. Don't soil yourself with a compromise with the devil. The lesser of two evils is still evil, they said.

Then the focus was on punishing Hillary. Now the focus is on stopping Trump

My observation in 2016 was that the never-Hillary/Bernie-was-robbed people wanted two things. They wanted to push Democrats to be a full-on Bernie party. Simultaneously, they were unconsolable. They considered Hillary, and more generally the centrist Democrats, to be part of the ongoing problem, in some ways the more dangerous than Republicans. Republicans were a known danger; centrist, corporate Democrats were an insidious one.

The never-Hillary left was unreachable
My prescription at the time: Democrats should quit fooling themselves. Those voters were lost to them. No means no. It was Lucy and Charlie Brown and the football. 

Change is slow but I observe some subtle shifts within the left. It is far from complete, but winning is so much better than losing gloriously.  Ocasio-Cortez is supporting Nancy Pelosi, recognizing that she is as progressive as the new speaker can be, and that the vulnerable elements of the Democratic majority are in the newly won purple Districts. Those new House members are being welcomed, not condemned. 

In addition, Facebook chatter is lightening up on Bernie. Bernie is still the burning symbol of hope, but he is no longer the one and only. Now he has potential rivals, people who appear to share the Bernie vision but who are a bit younger, with different baggage. New names can be mentioned: Elizabeth Warren, Beto O'Rourke. Ocasio-Cortez symbolizes the open-ended future: hope and change. She has charisma and she is young, both.

And there is Trump.  Trump's gleeful flouting of democratic norms are hastening the comparisons to past authoritarian governments, put in place through democratic means. The canard that "whoever mentions Hitler first, loses" is itself losing its power. Liberals see warning signs: the "fake news" allegation; proposing a new interpretation of birthright citizenship, creating second class residents; authoritarian leaders as friends; his use of the pardon power; criticism of the FBI and intelligence services; chanting crowds in support; personal diplomacy; his very posture, tone, and manner as the strong and decisive and cruel leader.

Nazi Celebration, Madison Square Garden, 1939
The Trump crowds are real. Somehow, authoritarian government does not seem utterly impossible.

Trump is not getting the pushback from Republican officeholders that they experienced in 1973 during the Watergate hearings. Democrats see that the former Constitutional check on Trump--the loss of support in his own party--simply is not there. Trump is serving up conservative judges and he motivates GOP voters. His base is a minority, but it is an essential minority to a GOP officeholder. They enable Trump.

The Constitutional solution, then, is electoral wins by Democrats, so the progressive left is cutting the left-center some slack. The left is taking credit for a Blue Wave, but the victory happened because centrist Democrats won close elections.  Some of the left isn't budging, but I see cracks in the wall of contempt for the center. The left isn't quite so fussy anymore.

Trump is frightening. Any port in a storm.

Tuesday, November 27, 2018

Trump the anti-elitist.

Prior to Sarah Palin, both parties had an elitism problem. Now it is mostly just the Democrats.

Trump re-made the GOP with a populist message.


A bi-partisan, educated elite in America had led politics in America for over a century. Party leaders, donors, and informed activists winnowed potential candidates to people thought suitable and prepared for the job of president. The result has been a bi-partisan government of comfortable elites sharing power. 

This was facilitated by ideologically diverse parties, which changed with Newt Gingrich. And then John McCain put Sarah Palin on the ticket.

Sarah Palin broke the mold. She didn't have an elite background. She was blue collar and proud of it. She didn't know much, but she was comfortable with who she was. She hunted caribou from helicopters. Her children had problems. She went to five different no-name colleges. She was a plain talker. No apology.

The news networks were aghast at her ignorance and unpreparedness. Liberal elites scoffed--and the more they scoffed the more people liked Palin and disliked the condescending know-it-alls.

Obama won, but the populist fire was lit in the GOP.

Conservative magazine attack on Obama
Obama reflected the civilizing effect of education and culture. He was an elegant spokesman for multilateralism, for global partnerships, for enlightened governments and mutual respect. For a moment America could imagine itself to be post-racial. The Obamas were classy. 

Bi-partisan elites had codes of proper behavior and thought. It included believing expressions of racial and religious prejudice to be unseemly and wrong. George W. Bush's response to the September 11 attack:

"These acts of violence against innocents violate the fundamental tenets of the Islamic faith. And it's important for my fellow Americans to understand that. The face of terror is not the true faith of Islam. Thats not what Islam is all about. Islam is peace."

ClassyIt was the sort of thing Obama might have said. 

Those words reflect a sophisticated, educated and generous view of the world--sentiments that can come from an underlying feeling of order and security in the status quo. 

A great many 
voters heard Bush and had a different instinct. They thought it was politically correct, prissy nonsense. It didn't reflect their thoughts at allThey disliked Muslims and were suspicious of what they might do. Screw Muslims!

Trump felt the same way.

Trump rallies are warmed up by parents of children killed by people in America illegally. The outrage! Trump generalizes this to all immigrants. So do a lot of Americans. It is statistically incorrect but emotionally on target for a great many. Screw those illegals!

It is what Archie Bunker of All in the Family show on TV in the 1970s would think. (It is what a lot of the elites think, too, but know they cannot say, lest they get into trouble with HR.)

Trump, like Sarah Palin, exemplifies the anti-establishment reaction to Bush and Obama and the educational and cultural elites who ran the country.

Trump is not elite. He talks about his wealth and educational credentials the way non-elites do it. He brags. He says it proves he is "really, really smart." It is vulgar. Gauche. The difference between Trump's scripted, written-for-him speech from a teleprompter, and his natural speech is obvious and profound. His natural speech is very simple and straight from the tabloids. He sounds like Archie Bunker, not Bush or Obama. Trump blasts the New York Times and Washington Post, and he should. They are elite newspapers written by elites for elites. 

Anti-elitism works for Trump politically. The GOP brand has been transformed but its key constituencies are intact. By ignoring the deficit he kept the anti-tax people aboard, his dog whistles on race and gender kept the cultural conservatives aboard, and his judicial appointments kept evangelical Christians aboard. A lot of people vote Republican out of habit and they all coalesce around disliking the condescending tone of the elites of both parties, but especially liberal elites.

Cultural populism trumps economic populism.

Monday, November 26, 2018

Poison Ivy

Barrack and Michelle Obama seemed so cultured, so well spoken, so elegant, compared to Trump.

Democrats have an elitism message problem. 

A pattern has emerged that is so strong it cannot just be an accident. The Ivy League has taken over politics, and Democrats totally drank the kool aid.

Republicans. Both Bushes were Skull and Bones Yalies. George W. Bush then attended Harvard Business School. John McCain attended the Navy Academy at Annapolis. Romney attended Harvard Law School. Republicans had an elitism problem until Trump changed the GOP

Democrats, beginning in 1988, have been Harvard and Yale all the way. Dukakis went to Harvard Law. Bill Clinton went to Yale Law, Al Gore went to Harvard, John Kerry went to Harvard, Obama went to Harvard Law (as did Michelle) and Hillary Clinton to Yale Law.

It continues. Several candidates have emerged among Democratic contenders for 2020: 
***Cory Booker: Yale Law.
***Deval Patrick: Harvard, then Harvard Law
***Amy Klobuchar: Yale
***Sherrod Brown: Yale
***Michael Bloomberg: Harvard Business School

Such a narrow pool.

There is more: Bernie Sanders (U. of Chicago), Elizabeth Warren (Rutgers Law, then taught at Harvard Law), Kirsten  Gillibrand (Dartmouth), John Delaney (Columbia), Beto O'Rourke (Columbia), Jeff Merkley (Stanford, then Princeton.)  

Joe Biden is the blue collar man of the people; he attended Syracuse.

Every member of the US Supreme Court--all nine--attended either Harvard or Yale Law Schools.

Democrats have become the party strong in suburban white neighborhoods because their candidates reflect the values of people aspiring to succeed in a modern, educated, diverse global economy.  Liberal progressive Democrats wring their hands that they have lost the support of blue collar workers. They do great in college towns but lose 3 to 1 in working class towns and areas where people work outdoors.

Trump carries the upper midwest and with that the White House.

Would Democratic activists be comfortable with a candidate who graduated from Southwest Texas State Teachers College--as did Lyndon Johnson? Such a candidate could carry a college town message of progressive politics and racial harmony but also relate more credibly with working class people. Yet apparently one need a brand name elite education to have credibility as a progressive leader--an inference one can make based on the fact that all the leading candidates are dripping with elite credentials. 

It cannot just be an accident. Democrats have given themselves tunnel vision.

Insofar as identity gives credence to policy, it would be handy if Democrats had a good progressive candidate who graduated from a state university or worked in an industry that grew something or made something or in which people got muddy doing their jobs. They could say the same things a Yalie might say, but they might have more credibility with working people if they had gone to the same schools that 99.9% of people go to.

Sunday, November 25, 2018

9th Circuit Thorn in Trump's Side

"Out of control."  "A complete and utter disaster."

                                Donald Trump, on the Ninth Circuit

Donald Trump and Fox News are tweeting and broadcasting an idea that the Ninth Circuit Court of Appeals is a rogue court, filled with biased or incompetent judges.

Trump cites statistics: The Ninth Circuit (representing the western third of the US) has more cases reversed than any other Circuit. About 75% of cases are reversed. Proof positive of failure!

Voters hear this and write this blog. Something must be very wrong to be reversed so often:

"Peter, the 9th Circuit Court has a huge number of cases that get appealed that are in fact overturned! Are these judges lacking in knowledge and understanding of the constitution or are they ruling with significant bias?

What is the truth?

The truth is that the 9th Circuit representing the western US is widely considered a little more  "liberal" on some issues than other Circuits. Similarly, the 5th Circuit representing Texas, Mississippi, and Louisiana is considered the most "conservative," and is being pushed more so on handguns and immigration by new Trump appointments. Click: Texas Tribune.

What is not true is that the 9th Circuit is "rogue," that is is reversed more than other courts, or that most of its decisions are considered "wrong" by the Supreme Court.

Click: Supreme Court
As the Supreme Court explains on their own website, they receive 7,000-8,000 appeals per year, of which they accept about 100 cases, just over 1%. This means that in nearly 99% of all cases the Supreme Court is content to let the Appellate ruling stand. This gives an entirely different picture than the one being presented by Trump and his media allies, that a vast majority of cases are overturned.

The Supreme Court intentionally takes hard, close cases where there is a significant chance of reversal, including cases where various Circuit Courts came to different conclusions. The Supreme Court is there to bring consistency between the Circuits. The fact that Circuit Courts are reversed is not a surprise. It is the expectation. After all, they disagreed on some point.

The 9th Circuit is reversed about as often as the others, with several Circuits being reversed more. The statistics are haphazard because with 13 Circuits (including the DC and Federal Circuits) and only 100 cases a year there are few data points to consider, but the 9th Circuit is exceptional only in there being the largest number of data points, which makes sense given that it represents by far the most population and territory and is by far the busiest.

It is not exceptional for being reversed more often. Seven of the 13 Circuits are reversed about 2/3 to 3/4 of the time, and the 9th Circuit at 79% is third in the percentage of reversals. The most conservative Circuit, the 5th in Dallas, is reversed 66% of the time.

The Ninth Circuit is a thorn in Trump's side not because it is an incompetent court, but because Trump's travel ban and immigration ban decisions were poorly drafted, so he was enjoined twice. On his third try his executive order had removed the clear evidence of racial bias animus and the Supreme Court, in a 5-4 vote, accepted the premise that the travel bans were based on legitimate national security grounds, not the religious and ethnic bias he had stated in public speeches was his actual motivation. 

The issue at point was the narrow one of whether judges should be allowed to use their common sense and the full record of a president's public statements to interpret the purpose of an executive order,  or whether they would be constrained to consider and take at face value only the statements put forth in the sanitized executive order. The newly constituted Court said they can only use the document itself, and must ignore what he said elsewhere.

That brought the result Trump wanted. The thorn was removed. Such are the kinds of decisions that come before the Court.

Politifact has an excellent, readable explanation of the cases the Court considers: Click: Politifact.

Readers who prefer a detailed report by the American Bar Association, with multiple tables that tell the same story: Click: ABA. Lots of charts at the end.

Click: current Newsweek
What is really going on is that Trump wanted a result. Trump is not particularly interested or concerned about institutions or process. Trump is saying publicly that the Courts are a frankly political institution and it is his goal to change the interpretation of the law by changing the political biases of the judges on the courts. It is a winning political strategy within the GOP.  White Evangelical Christians are Trump's strongest support group, and like Trump's promise to change the law one judicial appointment at a time.

Trump's talking point is that the 9th Circuit is incompetent. His real issue is political. He disagrees with some of the decisions the judges have made and is out to change the judges.

Saturday, November 24, 2018

Hillary Clinton Gaffe

Remember, a "gaffe" isn't telling a lie.

Jayapal: Clinton "deeply misguided."

A gaffe is telling a truth that people do not want to acknowledge.

Hillary Clinton should leave punditry to experts. Politicians should declare policy, not analyze policy. They get criticized for their observations, not their goals.

Hillary Clinton forgot that rule when she spoke to The Guardian newspaper and complimented Angela Merkel of Germany. "I think Europe needs to get a handle on migration because that is what lit the flame," Hillary said. 

Hillary Clinton: "I admire the very generous and compassionate approaches that were taken particularly by leaders like Angela Merkel, but it think it is fair to say Europe has done its part, and must send a very clear message: 'we are not going to be able to continue to provide refuge and support.' Because if we don't deal with the migration issue it will continue to roil the body politic."

This is not a crazy thing to say. It is descriptive. It coincides with what Tony Blair said: 

Tony Blair: "You've got to deal with the legitimate grievances and answer them, which is why today in Europe you cannot possibly stand for election unless you've got a strong position on immigration because people are worried about it. You've got to answer those problems. If you don't answer them then . . . you leave a large space into which the populists can march."

As this blog has experienced, many readers consider the description of a situation to be an endorsement of motivations of the political factors that created the situation. It is not enough to be different from Trump. One must be opposite of Trump.

Hillary's comments engendered immediate pushback. Washington State Congresswoman Pramala Jayapal called it a "deeply misguided and unfortunate comment." Twitter and FaceBook commentary called it "fascism", "anti-immigrant," "kick refugees to the curb," "racist bullshit," "the work of the far right," "appease some right wing political leaders," and "capitulating."

Her actual comments bemoaned the rise of right wing parties and policies in Europe. She said governments needed to "to get a handle on it," to create some limits. In 2015 Germany accepted some 1.1 million refugees, which, adjusting for population, would be the equivalent of an annual 4.4 million refugees in the US. By addressing the situation and backlash Hillary had--in the current state of possible discussion on this issue within the left--validated the backlash, and capitulated to right wing xenophobia.

There is a form of political Gresham's Law in effect. Bad political talk drives out good political talk. 

The angry critics win. Accusers dominate. Trolls and flame throwers join in. 

In the era of Trump, to say something that sounds like something Trump might agree with is--by definition--anathema and proof of centrism, sellout, and appeasement. No Democrat is making a clear and forceful defense of immigration limits and controls as being sound policy.

Since Democrats cannot discuss a complicated issue without creating a firestorm, Trump is filling the vacuum, saying Democrats want open borders so criminals, terrorists, and welfare cheats can come in at will. He dares any Democrat to disagree.

We see what happens to Hillary.

Any political party that cannot discuss the problems and concerns felt by people whose votes they need, won't get those votes. This is a problem for the left. 

Hillary is now a flawed messenger for any message, creating reflexive opposition. Some other Democrat needs to dare communicate a comprehensive message on immigration.

Friday, November 23, 2018

FAKE: Chief Justice's Spat with Trump

Chief Justice John Roberts is getting praise for standing up to Trump.

It is just for show. He is creating an alibi. 

The media is falling for it.
Roberts wants the Supreme Court to look independent while they in fact carry out a conservative partisan agenda.

They have their majority and are going to use it.

Republicans played the long game. Republicans were united. Democrats are split.

The GOP wins.

The Supreme Court is now, with Kavanaugh aboard, prepared to fulfill the fifty year effort to create a Court that will reverse precedent on abortion, on gay equality, on state sanction of Judeo-Christian practice in public spaces, on voting rights, and on the 14th Amendment. The process is already underway. The Heller decision made guns an individual right, not a militia right. Citizens United assured money in campaigns is protected free speech. The 1965 Voting Rights law was curtailed, and southern states immediately began reducing voter access.

Now that process will accelerate. 

Justice Roberts is creating a cover story, to protect the reputation of the Supreme Court and allow the acceleration to proceed.

Roberts is misunderstood as a centrist, credited for being a moderate within the context of a very conservative Court. After all, he "saved" the ACA, by deeming it constitutional. In fact, he is what he has always been, very conservative and very astute partisan. He protected the GOP from its own excesses by finding the ACA constitutional. As the GOP is discovering with the mid-term elections, voters actually liked the ACA protection for pre-existing conditions and expanded access to Medicaid. By keeping the ACE in place he gave the GOP something to complain about, without having to live with the consequences of having succeeded.

John Roberts knows full well that the Supreme Court will get controversial cases in the next year, and that the Court will rule with Trump. They will side against immigrants, against abortion, against immigrants, against gay equality, against protection for minority voters, and more. Most important, if necessary they will side against the indictment of a sitting president. 

Trump will praise the Supreme Court. This will lay bare the partisanship that created the new majority. 

That poses a danger to the Court. It will look like the Court is doing Trump's bidding--which they will be.  But the Court needs a fig leaf to cover the partisanship, so it can claim independent people with no pre-disposition examined the law and then thoughtfully decided that Trump was right all along.

John Roberts is preparing this cover story with this very public disagreement with Trump. It is political body language, for everyone to see. Surely the Supreme Court cannot be in cahoots with Trump; after all, look at them, fighting.

Liberals are encouraged. Pundits and the media weigh in praising the independent and fair minded Roberts. Judges will post on Facebook, praising Roberts. See how fair we judges are!

In that context of public support, the sober, independent, and fair-minded Supreme Court will start voting 6-3 to unravel fifty years of precedent.

Liberals and pundits are being played.