Tuesday, April 26, 2016

Cruising the Web

Our long, national nightmare shall continue. Whoever wins the presidency in November will already be probably the most unpopular president to ever be inaugurated since Abraham Lincoln. And none of the leading candidates have a fraction of the political skills or character of Lincoln.
Donald Trump, the Republican front-runner, has accomplished an unprecedented feat: More than two-thirds of voters say they can't stand him. In the same unpopularity contest, Hillary Clinton, the likely Democratic nominee, is runner-up: more than half the voters don't like her. Ted Cruz, who still has a shot at the GOP nomination, is almost as unpopular as Clinton....

And that has troubling implications for the next president, no matter who he or she turns out to be. After an election, presidents must bridge the partisan divide to get much done. But no need to wait for inauguration day 2017. We already know how this is going to turn out: We're pre-polarized.

It's easy to forget, but in 2009 Obama arrived at the White House with a massive 68% positive rating in the Gallup Poll, including 41% of Republicans. Eight years earlier, the newly elected George W. Bush enjoyed a 63% positive rating, including 37% of Democrats.

The honeymoon didn't last, but the numbers meant that these presidents at least had the benefit of the doubt from most independent voters and a significant minority in the other party. They both had a base of popular support from which to negotiate with Congress. But that's unlikely to happen this time.
Expect gridlock and partisan ugliness from the get go. I wish I didn't care about politics and could just ignore it, but I can't bring myself to be indifferent.

Hillary Clinton is trying
to have it both ways on the Second Amendment.
What does Hillary Clinton really believe on guns? This year, she is running to the left of Bernie Sanders. In 2008, she ran well to the right of Obama, arguing against any kind of federal “blanket rules.”

On Wednesday, Hillary Clinton gave an address at Philadelphia’s St. Paul’s Baptist Church. With a nod to Pennsylvania’s high rate of gun ownership, she declared: “There is a Second Amendment, there are constitutional rights. We aren’t interested in taking away guns of lawful, responsible gun owners.”

But in New York City in the fall, she told donors: “The Supreme Court is wrong on the Second Amendment, and I am going to make that case every chance that I get.” In Maryland last Thursday, Chelsea Clinton reiterated that point, promising that her mom would appoint to the Supreme Court justices who would overturn past decisions that struck down local and state gun-control measures. Given that the only laws that the Supreme Court has objected to are complete gun bans or laws that made it a crime to chamber a bullet, one wonders what “constitutional rights” Clinton was talking about preserving in Philadelphia.
I suspect that she changes her position based on which voters she's targeting. Hypocrisy is no barrier to Hillary - hypocrisy is her basic MO.
Senator Bernie Sanders often defends his positions on guns by arguing that what makes sense for one part of the country might not make sense for another, such as his home state of Vermont. Clinton has gone so far as to suggest that his argument is racist: “There are some who say that [gun violence] is an urban problem. Sometimes what they mean by that is: It’s a black problem. But it’s not. It’s not black, it’s not urban. It’s a deep, profound challenge to who we are.”

Clinton is being hypocritical. She made Sanders’s exact argument in April 2008, when she was running against Obama in Pennsylvania: “What might work in New York City is certainly not going to work in Montana,” she said. “So for the federal government to be having any kind of, you know, blanket rules that they’re going to try to impose, I think doesn’t make sense.”
I imagine that she will move to the right on guns or drop the issue altogether in the general election as she tries to appeal to those voters clinging to their guns and religion.

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Marc A. Thiessen identifies
Obama's most enduring legacy - the failure of Obamacare and how it has devastated the insurance industry.
So what happens now? Because commercial insurers are not going to keep bleeding cash to prop up Obamacare, they have three choices: 1) scale back coverage, 2) raise prices or 3) get out of the exchanges entirely. More and more are going to choose option 3.

Does this mean that Obamacare is finally entering its “death spiral”? Not exactly. As my American Enterprise Institute colleague Scott Gottlieb explains, while commercial insurers are starting to leave Obamacare, they are being replaced by Medicaid health maintenance organizations (HMOs) offering skimpy plans that mirror what they offer in Medicaid — our nation’s emergency health insurance program for the poorest of the poor.

This is a catastrophe for people stuck in Obamacare. According to a 2014 McKinsey survey, about three-quarters of those in the exchanges were previously insured on commercial plans, either through their employers or the individual market. They were doing fine without taxpayer-subsidized insurance but were pushed into Obamacare. They now face rising premiums and smaller provider networks — and as commercial insurers flee, they will increasingly be stuck in horrible, Medicaid-style plans.

This is not what the president promised when he sold Obamacare to the American people.

The president promised Obamacare would provide “more choice, more competition, lower costs.” Instead, Americans have less choice, less competition and higher costs. According to the Kaiser Family Foundation, if UnitedHealth “were to leave the exchange market overall, 1.8 million Marketplace enrollees would be left with two insurers, and another 1.1 million would be left with one insurer.” As more commercial insurers do the same, there will be even less competition — and higher premiums.

The president promised “if you like your doctor, you can keep your doctor.” But commercial insurers who stay in Obamacare are responding to massive losses by narrowing provider networks, with fewer doctors and hospitals to choose from. And those that quit are being replaced by Medicaid HMOs with even less doctor choice.

The president promised Obamacare would “lower premiums by up to $2,500 for a typical family per year.” But insurers are raising premiums instead to cover the massive losses, and even Marilyn Tavenner — the former Obama administration official who ran Obamacare — has predicted premiums will rise even further next year.

As they do, young, healthy individuals will be priced out of the exchanges — and the only people who will be able to afford Obamacare will be high-risk patients who qualify for federal subsidies. Without enough healthy people in the exchanges to pay for the sick ones, taxpayers will be stuck with more and more of the costs over time — a situation that is unsustainable in the long run.
As Thiessen points out, the result is an increased distrust in the government - not quite what Barack Obama came into office aiming to do. By vastly increasing the role of the federal government and failing so abysmally, Obama has poisoned the well for further expansion of the federal government's role.

It shouldn't surprise anyone to learn who is really behind the efforts on college campuses attacking Israel. Jeff Robbins of the Boston Herald details how a Harvard Law student stood up at a public discussion there featuring former Israely Foreign Minister Tzipi Livni, a Palestinian supporter in Harvard Law got up and asked this question:
“How is it that you are so smelly?...A question about the odor of Tzipi Livni, she’s very smelly, and I was just wondering.”
The fact that a student at perhaps the most prestigious law school in the country would feel able to ask such an anti-Semitic question in public and do so with impunity tells us a lot about the atmosphere on college campuses today.
The gross, anti-Semitic slur directed at a respected Israeli leader at Harvard coincided in depressing fashion with some unsurprising congressional testimony last week about the individuals responsible for promoting and funding anti-Israel activities on American campuses. The Foundation for Defense of Democracies’ Jonathan Schanzer, a former terrorism finance analyst for the Treasury Department, detailed the way former employees of organizations prosecuted, sued or shut down for financing the terrorist enterprise Hamas have simply moved over to the Boycott, Divest and Sanctions (BDS) movement targeting Israel in academia.

“In the case of three organizations that were designated, shut down or held civilly liable for providing material support to the terrorist organization Hamas,” Schanzer told Congress, “a significant contingent of their former leadership appears to have pivoted to leadership positions within the American BDS campaign.”
And students are buying into their ugly propaganda.

Remember when Democrats had fits about Mitt Romney having money in offshore accounts in Cayman Islands? Obama ran an ad against Romney about that. Well, it turns out that John Kerry and his billionaire wife have also taken advantage of the tax breaks in the Cayman Islands as we now learn from the Panama Papers.
Secretary of State John Kerry and his wife Teresa Heinz have invested millions of U.S. dollars through family trusts in at least 11 offshore tax havens, according to The Daily Caller News Foundation’s Investigative Group.

The revelation comes on the heels of the release of the Panama Papers, a treasure trove of 11.5 million legal and financial records documenting how some of the world’s richest and most powerful people have used offshore bank accounts to conceal their wealth and avoid taxes.

Since the release of the papers, no American politician has been identified as using the secretive offshore accounts.

But a DCNF investigation has confirmed that the former Massachusetts Democratic senator and his billionaire wife, using an elaborate set of Heinz family trusts, have invested “more than $1 million” each into 11 separate offshore accounts — mainly hedge funds in the Cayman Islands.

The investments were made during both Kerry’s tenure in the Senate and in his present position as the nation’s chief diplomat.

The trusts funneled millions of dollars over the years into various offshore investment vehicles through a Heinz trust called the “Heinz Family Commingled Alternative Investment Fund.”

Two other trusts appear to have been set up by the Heinz family since Kerry was appointed by President Barack Obama in 2013 to succeed Hillary Clinton as secretary of state.
I don't think that there is anything illegal about minimizing one's tax burden, but Obama hasn't been so tolerant. And, of course, John Kerry will argue that it's his wife's money, not his, and that the money is controlled by an independent trust.
Obama recently lashed out at U.S. citizens who use tax havens.

On April 5, a few days after the Panama Papers were released, the president said the rich “have enough lawyers and enough accountants to wiggle out of responsibilities that ordinary citizens are having to abide by.” He said they were “gaming the system.”

Harley said the president might not be pleased with some of his cabinet members investing in tax havens: “Given what the president has said, it doesn’t sound like he would be in favor of that kind of behavior as far as people in his cabinet.”

For its part, State Department Spokesman Adm. John Kirby told TheDCNF Kerry is not a beneficiary of the investments and does not own them.

“Secretary Kerry has no offshore investments. He is not, nor has he ever been a beneficiary of Heinz Family and Marital Trusts and he has no decision-making power over them since they are entirely controlled by independent trustees,” said Kirby.
We all know that those excuses would be derided if it had been Mitt Romney about whom we are learning this.

Just imagine what Trump would have to go through with all his various businesses if he were actually to win the presidency. He says that he would just have his children run everything. I would like to know if there are any laws about what public officials must do with their money when they're in office. Is it enough to have family members manage the money or do they have to use a blind trust? Or is it just left up to the individual?

The Washington Post editorializes today about the fact that Trump hasn't released his tax returns.
Meanwhile, the real estate developer has stalled, puzzlingly declaring that his tax returns are “very beautiful” while offering laughable excuses for refusing to share them with the public.

Mr. Trump’s primary defense is that the Internal Revenue Service is auditing his tax submissions. This presents no obstacle to him releasing earlier returns. There is also nothing stopping Mr. Trump from disclosing his preliminary tax documents even while the government is reviewing them. The differences pre- and post-audit could be illuminating. So could many other details. Maybe the returns would provide evidence that Mr. Trump’s business dealings are not generating as much profit as one might expect. Perhaps they would demonstrate that he does not give much to charity, as reporting from The Post’s David A. Fahrenthold and Rosalind S. Helderman suggests. Maybe there would be other surprises.

Mr. Trump claims that tax returns do not show all that much. This argues for releasing more information, not less. Presidential candidates have in the past gone beyond releasing personal tax returns. Mitt Romney, for example, disclosed tax information from the Tyler Charitable Foundation, the entity that handles his charitable giving, during the 2012 campaign. True, information on Mr. Romney’s generosity tended to paint him in a positive light. But if the story Mr. Trump has told voters is true, shouldn’t releasing information about his business dealings help him? The GOP front-runner has made his business prowess central to his campaign. Along with his personal tax returns, he should release more hard information about the performance of his private ventures so that voters can judge whether he is the business genius he claims to be.

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Ah, so this is the new presidential style of Donald Trump.
Donald Trump introduced Hillary Clinton's physical appearance into his presidential campaign for the first time on Monday, asking a rally audience in suburban Philadelphia if she looks 'presidential.'

The move indicates that Trump is looking past the July Republican National Convention to a general election campaign – and that there will be no holds barred if he faces the former secretary of state.

'Do I look like a president? How handsome am I, right? How handsome?' a preening Trump asked nearly 5,000 supporters during a rally at West Chester University. 'Somebody said, "He really does look good, but you know, I don't know if he's presidential".'

'And I'm looking at this stage of people – my competitors,' he pivoted, landing squarely on Clinton.

'Does Hillary look presidential?' he asked. 'No!' came the audience's response.
I'm not sure what looking presidential means, but he sure doesn't sound presidential. And then there was this.
Donald Trump on Thursday played the grace card against John Kasich, by saying Kasich is too disgusting an eater to become president.

"He has a news conference all the time when he's eating," Trump said to a crowd in Rhode Island. "I have never seen a human being eat in such a disgusting fashion."

Trump said he used to warn his kids about behavior like that, when his kids were smaller.
Of course, Ted Cruz is not acting exactly presidential in his focus on attacking Trump over the North Carolina's bill banning transgendered individuals from using bathrooms of their chosen gender in public buildings with this crack:
If Trump dresses up as Clinton, he still can’t go to the girls’ bathroom,” Cruz quipped at a Sunday night event.
Charming. Apparently, transgender bathroom rights is a big issue in Pennsylvania. I guess it polls well in Cruz focus groups to attack Trump over transgenders and bathrooms, but it sure isn't the issue on which I want to see us choosing our president.

Noah Rothman detects a pattern in the Trump message - convince people that their misfortunes are all someone else's fault. And now he can use that same message when he pretends that he's a victim of a "rigged" system that is denying him delegates that he was too incompetent to obtain himself.
It is the central conceit of the Trump campaign’s pitch to his supporters. He contends that their woeful lots in life are not of their own making. They have been sold out by selfish politicians in Washington, displaced economically by unfair competition from China and cheap labor from Mexico, and marginalized by a culture that values “political correctness” above “telling it like it is.” It only makes sense that Trump would ape the sense of victimization he encourages in his supporters....

rump has simply been outmaneuvered. As metaphors go, this is an especially apt one. Even as Team Trump tries to correct for their early errors, they continue to behave in a self-defeating manner. Ahead of Delaware’s primary on Tuesday, the Trump campaign’s delegate outreach coordinator was apparently so threatening and heavy-handed that he created antipathy toward Trump among local GOP officials that did not previously exist.
Gee, if only there were someone in the Trump campaign who knew the art of the deal and could use that to get delegates.

And if only voters realized that the GOP primary system has been rigged in favor of Donald Trump.
Trump is right, in a way. The process is rigged; it’s rigged to favor the system’s winners. This is why it is Trump who controls 49 percent of the bound delegates so far despite winning just 38 percent of the popular vote. A movement that believes that 40 percent is a majority, or that they are being robbed out of their due because they don’t understand the process is – and there is no way to put this delicately — paranoid.

This process was designed to facilitate the ascension of a Mitt Romney-type candidate to the nomination in a manner that allowed the nominee to avoid a prolonged primary fight. If Trump had invested the time and capital necessary to create an organization aimed at securing the nomination at the earliest stages of this process, that nomination would have already been his. Even without the architecture of a real campaign, Trump may only just narrowly be prevented from winning the delegates necessary to secure the nomination outright. For this set of circumstances, Donald Trump has only one person to blame. But he, like his supporters, have declined the opportunity to engage in some rather unforgiving introspection.

Only Donald Trump has a pathway to the nomination now prior to a second ballot on the floor of the Cleveland convention. Unless Cruz or Kasich intend to concede the nomination to Trump, they only have one way to force that outcome, and that is to coordinate their efforts. If that engenders in Trump supporters an even more aggravated sense of alienation and victimization, then so be it. Neither Trump nor his supporters are entitled to a particular outcome in this life – they must work for and earn their achievements. Conservatives used to understand that.

Peter Spiliakos explains
how Cruz is being hurt by Trump's attacks - he's being taken off topic and isn't talking about anything that people truly care about.
I watch politics pretty closely and, from Cruz’s Wisconsin win to the middle of last week, I haven’t heard a single news report where Cruz has said one thing that would impact the life of a voter. Cruz is always sampled talking about the nomination rules and the delegate-selection process. He broke through a little bit at the end of the week by talking about transgender people using bathrooms....

Cruz talks in the coded language of political junkies. He talks about religious liberty and partial-birth abortion, but large swaths of his hearers have no idea what he is talking about. This leads to a bifurcation of public opinion about Cruz. Political obsessives like the people reading this post could tell you Cruz’s opinion on just about anything. The regular person couldn’t tell you anything, because Cruz might as well be speaking a foreign language in his prepared speeches and in his paid media. I also suspect that this is why Cruz does better in low-turnout contests. It isn’t just better organization. Highly ideological conservative activists (not to be confused with Republican-party hacks) are the people who speak his language. There are not enough of those people.
A successful candidate finds away to talk to voters about what they care about and explain how his policies will address those issues. Spiliakos's point is right on target. If Cruz wants to improve his appeal to voters, he needs to find a way to connect his ideas to average people's concerns.

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Newsweek has discovered the newest outrage against women in America today is "period shaming"?
While Newsweek breathlessly told of women hiding their tampons in their sleeves as they walk to the bathroom and of ad agencies using blue liquid to “sanitize” the experience of having a period, if these experiences are what pass for “oppression” these days, it’s safe to say American women are getting along just fine.

Hillary is already setting a quota for her cabinet - she is promising that 50% of her cabinet will be female. For her, chromosomes trump ability. Her husband had a similar idea insisting that his attorney general must be a woman. That's how we got Janet Reno.

Politico portrays a man who sued Donald Trump and won.
This was March of 1990. Roffman was a veteran securities analyst. He had focused on the gaming industry in Atlantic City since the first casinos opened in 1978. He knew the market as well as anyone and had watched closely as Trump made a typically bold entrance with Trump Plaza and Trump’s Castle in 1984 and 1985. Now the New York real estate tycoon was about to open his third casino, by far his biggest, most lavish and most shakily financed one yet, the Trump Taj Mahal. Roffman was skeptical. He told a reporter from the Wall Street Journal the Taj would fail.

What happened next was straight out of Trump 101. The “people I don’t take too seriously,” he had written in 1987 in The Art of the Deal, “are the critics—except when they stand in the way of my projects.” Roffman was in the way. Trump bombarded him with invective, threatened to sue his employer, demanded his firing and then publicly assailed him some more. The fact that Roffman’s assessment was grounded in reality—that he would prove to be right—didn’t stop Trump from attacking Roffman. It was the reason for it.

Three days after the quote in the Journal, Roffman was fired. What happened after that, though, was unusual. In the long history of the leading Republican presidential candidate’s use of disparagement, intimidation and forceful warnings of litigation, there is no person quite like Roffman. He filed a lawsuit against Trump and won a clear victory—a fat check drawn on a Donald Trump account.

How does one beat Trump? For Roffman, it took time and money, gumption and conviction. Trump v. Roffman was a noisy, blustery harangue in the court of public opinion. Marvin B. Roffman v. Donald J. Trump and Trump Organization, Inc., on the other hand, was a longer, fact-based slog in an actual court.
That's the Trump way - a man gives his honest, professional assessment of a Trump business venture and Trump gets him fired. And, of course, Trump was totally wrong about the success of the Taj Mahal and Rothman was exactly right. This incident tells us a lot about how Trump would govern, using every power at a president's command to shut down criticism. He's already mused about changing libel laws.

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Michael McCann of Sports Illustrated, who has had some of the most penetrating analyses of Deflategate legal issues, explains the long odds facing Brady's options for appeal. However, one event that could help Brady is if Adrian Peterson wins his unrelated appeal.
Brady could benefit if the U.S. Court of Appeals for the Eight Circuit were to rule in favor of Adrian Peterson. A decision in the Peterson case is expected any day now. In February 2015, U.S. District Judge David Doty ruled in favor of Peterson, who was punished under a new domestic violence policy for conduct that took place during a previous policy. If the Eighth Circuit affirms Judge Doty’s ruling in the face of the NFL’s appeal, it could present a conflict between the Eighth Circuit and the Second Circuit on how the NFL interprets Article 46 in resolving disciplinary matters and more specifically how issues of notice and consistency are evaluated. So-called “circuit splits” increase the likelihood that the Supreme Court will agree to hear a case. While the Brady and Peterson cases are different in many ways, Peterson winning would clearly be good news for Brady’s team if it were to seek review by the U.S. Supreme Court.

Sally Jenkins argues in the Washington Post today
that the lawyers for the NFLPA made the mistake of arguing about the scope of Roger Goodell's powers instead of arguing Tom Brady's innocence. That put them on the weakest ground because courts will defer to the the agreement in existence between the union and the league.
As Deflategate wore on, the lawyers representing Tom Brady forgot to do something essential. They forgot to argue their client’s innocence. Instead Jeffrey Kessler and the NFL Players Association got so lost in pushing their interpretation of the collective bargaining agreement and trying to trim the powers of Commissioner Roger Goodell that they failed to drive home the essential point: How can a player be suspended for “conduct detrimental” when there was no conduct to begin with?

To date, we are still looking for a single shred of credible evidence that any human hand deflated the footballs in that AFC championship game. Where is the conduct? Much less the conduct detrimental?

Somehow this point was missed in the many briefs and oral arguments. Consequently, three judges of the U.S. Court of Appeals for the 2nd Circuit missed it, too, ruling 2-1 in favor of the NFL and reinstating Brady’s four-game suspension. Even chief judge Robert A. Katzmann, whose water-clear dissent left Brady some faint hope, missed it. Katzmann believes Goodell indeed invented “his own brand of industrial justice,” and if the chief justice thinks so, then perhaps a full 2nd Circuit panel will too, should Brady seek a stay and appeal. If he does, this time around his lawyers should emphasize the only truly salient point of the entire case. As New York Law School professor Robert Blecker put it, “What happened to the deflate part of Deflategate?”
As Jenkins advises Brady and other players, they should realize that their interests are not the same as the Players' Association's interests.
According to the judges, there is only one very narrow ground for overturning arbitration: if the arbitrator is “guilty of misconduct” and “violates fundamental fairness.”

Goodell was guilty of misconduct: This was the point to be hammered. Yet Kessler seemed reluctant to reargue any points of the case against Brady. He even tried to tell the judges that they weren’t supposed to reconsider the facts, only to consider the process and whether it was reasonable.

Yet facts and process are to a certain extent inextricable. As Katzmann’s dissent recognized, Goodell employed “a shifting rationale for Brady’s discipline.” Goodell strayed far from common sense and from any previous penalty for ball tampering, such as receivers using stickum. There was “a lack of any meaningful explanation in the Commissioner’s final written decision.” The punishment was “unprecedented and virtually unexplained.” Goodell’s powers are broad, but they shouldn’t be “limitless.”

Yet even Katzmann stopped short of acknowledging what really happened here: Goodell simply made things up as he went along. There is evidence that the Wells Report manufactured or twisted facts to make Brady seem guilty. And lately we have evidence that the NFL has suppressed information that might exonerate him. This season, the NFL spot-checked inflation levels of footballs, and then refused to make the data public. There is only one conceivable rationale for not releasing it, and that’s because it makes the specious Wells Report look even more specious, and supports the account of the Patriots and consensus of mainstream scientists: The deflation level of the footballs was because of cold, wet weather and the effects of the Ideal Gas Law.

There was no conduct. Much less detrimental conduct. If Brady appeals, this is the point of the case, not the vague language in a bad deal.
Here is another hole in my knowledge. Perhaps lawyers among my readers can enlighten me. Can an appeal be based on a totally different argument other than the one brought up in the original case? I wouldn't think that an appellate court would allow in a trial based on the facts other than what was established in the original trial, would they? It may well be that that avenue is already closed to Brady unless he wants to sue the league for defamation.
Under Massachusetts law, Brady has three years from the date of alleged defamatory statements to file a defamation lawsuit against the NFL and Goodell. While a successful defamation lawsuit would only lead to monetary damages awarded to Brady—who is reportedly worth in the ballpark of $130 million—and would have no impact on whether the NFL can suspend him, Brady could (as suggested by MIT professor John Leonard) donate any monetary damages awarded to charity. Brady may see a successful defamation lawsuit as a way to restore his image and perhaps get the “last laugh” against the NFL.

Nevertheless, defamation lawsuit is unlikely. As a public figure, Brady face a higher legal bar in a defamation lawsuit than would an ordinary person. He would need to show “actual malice,” meaning the league intentionally or knowingly made untrue and damaging statements about him. This is often a high bar. The NFL would also argue, as it argued in Jonathan Vilma’s defamation lawsuit against Goodell over Bountygate, that a defamation lawsuit is “preempted” by the CBA’s language expressing that player-league disputes must be resolved through internal league procedures and that players thus cannot obtain alternative relief through courts. A federal judge agreed with the NFL about preemption in the Vilma case and it’s possible the same result could occur for Brady.

Steven Hayward celebrates the 40th anniversary of what he calls "the greatest play in baseball history."