A plain blog about politics: Romney's Skills and the General Election

The level-headed Jonathan Bernstein calls this as a close general election, with Romney a "perfectly adequate" nominee. Sounds right to me. The gaffes are minor. Scandals zero. And the centrist voters will forget his pandering to the right as soon as the primary is over. Which is next Tuesday. From then on the race tightens. - GWC

A plain blog about politics: Romney's Skills and the General Election:

by Jonathan Bernstein

"Over at PostPartisan, I'm arguing today that Romney is underrated, and actually has important political skills. I don't think it's just luck that he's emerged as the almost-certain nominee.
Projecting that forward...here's what I expect.... "
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NJ Supreme Court: Padilla gets only prospective effect

Justice Jaynee LaVecchia

The New Jersey Supreme Court divided 5-2, holding in State v. Gaitan, that a defendant whose lawyer neglected to properly advise a client of the deportation consequences of a guilty plea is entitled to post conviction relief only if the malpractice occurred after the landmark ruling Padilla v. Kentucky,  (2010).  Imposing on defense counsel an affirmative duty to warn of immigration law consequences of a guilty, the U.S. Supreme Court broke new ground - a result not compelled by the 6th Amendment precedent of Strickland v. Washington,  466 U.S. 668 (1984).  Defendants whose counsel fell short of the Padilla standard before it was decided are not entitled to relief.

Associate Justice Barry Albin dissented, joined by Virginia Long, whose tenure ends today.  In 1996 Congress drastically increased the number of offenses which mandated deportation - even of aliens lawfully resident.  Gaitan's guilty plea was in 2005. Albin argues:

 with reference to the 1996 amendments the majority concludes that it is “particularly important now for criminal defense attorneys to be able to, at a minimum, secure accurate advice for their clients on whether a guilty plea to certain crimes will render them mandatorily removable.”  But then why was it not important in 2005, nine years after the effective date of the amendments, for a noncitizen to receive advice about the immigration consequences of a plea?

Albin therefore rejects the majority's ruling that Padilla created a new constitutional rule. Any "minimally adequate defense attorney has long known" to advise the client of the immigration consequences of conviction of a crime, he declared.

The 3rd Circuit has held in favor of retroactivity while the 7th and 10th  have ruled against it.  The issue therefore is headed to the United States Supreme Court.  In New Jersey the ruling permits courts to lift the stay on 257 post conviction relief cases.

In Arizona and Michigan primaries, Romney stays on course - The Plum Line - The Washington Post

Romney has really had this thing wrapped up for a while. Santorum has NO support among Republican office holders and professionals and Gingrich lights their hair on fire. So even if the Tea Party network keeps the primary fight alive...it's really dead men walking. - GWC

In Arizona and Michigan primaries, Romney stays on course - The Plum Line - The Washington Post: by Jonathan Bernstein

"The truth is that it doesn’t matter all that much at this point. Mostly, what’s at stake is whether the general election campaign starts a few weeks earlier or later. Republicans are nominating someone who will function, basically, as a generic Republican; Romney’s no master politician, but he doesn’t have any of the significant weaknesses of a Rick Santorum, not to mention the massive weaknesses of Newt Gingrich. And yet they’re going to nominate him only after pushing him on issue after issue to adopt a Tea Party platform. That’s good for conservatives if he wins, but on balance it will tend to make a November victory a bit harder for him. At any rate, enjoy these last few weeks of primary elections while they last, because we’re about to have a very, very long general election campaign."

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Strange But True: Rick Santorum Channels Steve Jobs - James Fallows - Politics - The Atlantic

James Fallows calls it: Rick Santorum has a stunning new TV ad. Speaking directly to his base. If he beats Romney today this will show you how he did it. And the bonus: the brilliant McIntosh 1984 Superbowl ad. clck thorugh and watch them both.

Strange But True: Rick Santorum Channels Steve Jobs - James Fallows - Politics - The Atlantic:

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Obama on saving the auto industry

President Obama shows how to inspire "the base" in a talk to UAW members.

Diving into the Wreck - BP & Kenneth Feinberg's Gulf Coast Gambit

Kenneth Feinberg

The imminent start of the first phase of the liability trial regarding the BP Gulf of Mexico oil spill is an appropriate occasion to post this abstract and a link to the text of my new article. - GWC


Diving into the wreck: BP and Kenneth Feinberg’s Gulf Coast Gambit
17 Roger Williams University Law Review 137 (2012)

by George W. Conk
ABSTRACT
The 1990 Oil Pollution Act mandate - that a party “responsible” for an oil spill establish a “procedure” to  pay interim damages - has largely removed the courts from the process of determining scope of liability and turned it over to the private ordering of the claims bureau established by the responsible parties designated by the President under the OPA.

BP put its “procedure” in the hands of a lawyer of solomonic reputation - Kenneth Feinberg.  His broad settlement authority was designed to produce both prompt compensation for current losses (without prejudice to future claims) and early settlements of claims for  any future losses.  Through its  Gulf Coast Claims Facility  BP - making interim payments - has had a nearly free hand in determining the extent of its liability under the OPA. Though plaintiffs lawyers have moved to “supervise” the process through the MDL, neither a negotiated grid nor any court ruling has defined the scope of liability.

BP’s  private claims resolution process is almost entirely unregulated.  Only after months of jaw-boning by Gulf Coast Attorneys General and the U.S. Attorney General did BP  agree to be audited.  No regulations govern responsible parties who establish a “procedure”. The GCCF’s allocations are often impenetrable.  BP’s  GCCF can be described as the pseudo-fund model for mass tort claims resolution.  Though its name suggests an independent fund, the GCCF is in fact merely BP’s statutorily compelled mechanism for satisfying economic loss and clean-up claims.  In the absence of either regulatory guidance or court rulings on scope of liability the settlement parameters are indistinct to claimants.  Even BP is uneasy because Feinberg’s settlement offers under the OPA  go well  beyond the narrow parameters of maritime courts which in spill claims have historically denied compensation to all in the supply chain except fishermen and those who suffered property damage.

 The executive branch should examine the OPA’s regulatory gap.  No regulations govern the manner in which a solvent polluter meets its statutory clean-up and compensation responsibilities.  There is no liability guidance, no audit, no reporting, no monitoring of the company’s ability to meet its obligations, no review of its success in meeting its obligations.   If the executive branch does not take this up, Congress in its oversight capacity should do so.
***

Postscript:  my article does not discuss the August 26 ruling by Judge Barbier that touched on the scope of liability issue.  He ruled that liability under maritime law is limited to fishermen and those who suffered property damage or personal injury. However, he suggests that the scope of liability will be broader under the Oil Pollution Act.

The block quote below gives some of the flavor. - GWC

[The Court notes that OPA does not expressly require “proximate cause,” but rather only that the loss is “due to” or “resulting from” the oil spill. While the Court need not define the precise contours of OPA causation at this time, it is worth noting that during oral argument both counsel for BP and the P(laintiffs) S(teering) (Committee) conceded that OPA causation may lie somewhere between traditional “proximate cause” and simple “but for” causation. (citing CSX v. McBride, U.S. 2011)]

Is this why Mitt Romney’s stadium is empty? - The Washington Post

Is this why Mitt Romney’s stadium is empty? - The Washington Post:

by Ezra Klein

"What Romney is essentially proposing to do is finance a massive tax cut by cutting Medicaid, food stamps, housing subsidies and job training. In other words, the neediest Americans — and, to a lesser degree, federal workers — will be financing a massive tax cut.

I don’t know whether independent analysts will say the numbers add up to make the rest of Romney’s plan deficit neutral. My guess is they won’t. But even if they did, Romney’s priorities are clear: In order to cut taxes and raise defense spending, he’ll cut the programs that support the poorest Americans.

In 2000, George W. Bush ran for president saying “I don’t think they ought to be balancing their budget on the backs of the poor.” In 2012, amidst a much worse economy, Romney is running for president saying exactly the opposite.

Perhaps that’s why the stadium is empty."

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Where Is This Man When We Need Him? - George Vecsey

Where Is This Man When We Need Him? - George Vecsey:

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Stanley Fish on Tamanaha and Legal Education Today

The Bad News Law Schools - NYTimes.com:

by Stanley Fish

"Uneasiness about the state of legal education has been around for some time, but in the wake of the financial meltdown of 2008, uneasiness ripened into a conviction that something was terribly wrong as law school applications declined, thousands of lawyers lost their jobs, employers complained that law school graduates had not been trained to practice law, and law school graduates complained that they had been led into debt by false promises of employment and high salaries. And while all this was happening, law schools continued to raise tuition, take in more and more students, and construct elaborate new facilities.

That at least is the story told in a book to be published later this year, “Failing Law Schools,” by Brian Tamanaha. Tamanaha is a law professor, a former law school dean, a prolific legal theorist and, by his own account, a malefactor who in the past did some of the things he now criticizes. Having seen the light, he feels compelled to spread and document the bad news."

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Obama sings the Blues

President Obama pitches in with a few lines of Sweet Home Chicago.

So You Think You Want to Run for Office… | GOPlifer | a Chron.com blog

Chris Ladd comments on the plight of the rationalist Republican thinking seriously of running for office for the first time - in today's Republican Party. He passes it up when he realizes that he has to pacify a group that is so OOT that rational dialog is not an option. How, Ladd asks, can reasonable candidates break the grip of the crazies? It is an important question.

The great judges of the civil rights era were Republicans. Has that tradition been irretrievably lost? I've been on the political left all my adult life: but I believe in the yin/yang. It is natural that some people emphasize the need for individual responsibility, others emphasize social responsibility. These characteristics underlie the liberal/conservative split. But the universe of discourse of the Republican Party has moved so far to the right that its viability as a national party is in serious doubt. - GWC

So You Think You Want to Run for Office… | GOPlifer | a Chron.com blog: "The GOP activists want to know how Joe’s going to stop “Agenda 21” and prevent the replacement of the US Dollar with the Amero. They ask whether he has the courage to stop liberals from training our schoolchildren to be gay. They want to know whether he’s gullible enough to believe that the ‘document’ Obama released is actually his birth certificate.

Will he send troops to the border to halt the ongoing Mexican invasion of America? Will he stop the TSA from sexually molesting airline passengers? Is he prepared to fight Obama’s plans to take dictatorial powers? And so on. And so on. And so on."

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Bad Reaction | Commonweal magazine

Are the U.S. Catholic bishops determined to wage a partisan culture war? Why aren't they chastened by the massive exodus from the Catholic Church - 1/3 of adult Catholics, and a drastic decline in the respect in which it is held by youth? The Commonweal editors discus the issues. - GWC

Bad Reaction | Commonweal magazine: "Conservative Catholics complain that too many liberal Catholics instinctively greet every statement from the Vatican with suspicion, skepticism, or derision. It’s a fair point. The motives and judgment of those who appear unthinkingly hostile to all hierarchical authority should be questioned. Patient attention to the legitimate concerns of others and the presumption of goodwill on the part of those we disagree with are essential virtues.

Unfortunately, patience and the presumption of goodwill were not much in evidence in the response of the U.S. bishops and many conservative Catholics to President Barack Obama’s compromise on the question of mandated contraceptive coverage for employees of religious-affiliated institutions. Even before all the details of the president’s proposal were known, the bishops rejected it and then upped the ante by insisting that the only possible solution was to repeal the mandate altogether. In other words, the bishops are now demanding that no employer be required to offer free contraception coverage to its employees."

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Romney takes Maine by 117 votes

Republican voters caucus in Machias, Washington County, Maine

Ron Paul took a 2-1 lead in the four late-caucusing Maine counties but still fell short of carrying the state by 117 votes.  The nod went to Mitt Romney - sometimes of Massachusetts which spun off Maine in 1820.  Transatlantic landings at Eastport, Washington County  - the easternmost in the U.S. - rivalled New York and exceeded Baltimore in the 1820's.  Today we marvel that there are still states like Iowa and Maine where people show up in person to declare their preference for a candidate at a gathering of town citizens.  Of course the result is often piling up votes for wild card candidates like Ron Paul who makes sense at the rate of a single-bullet Russian Roulette player with a six-shooter.

No relief in 2012 from high unemployment for African Americans and Latinos | Economic Policy Institute

We have a long way to go. - GWC

No relief in 2012 from high unemployment for African Americans and Latinos | Economic Policy Institute:

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Working all day for the IRS - NY Times

 Working All Day for the I.R.S. - Common Sense - NYTimes.com:

 by James E. Stewart
 " Mitt Romney is not alone. I thought Mr. Romney’s 13.9 percent federal tax rate would be hard to beat. But among the 400 Americans with the highest adjusted gross incomes in 2008, 30 of them paid less than 10 percent and another 101 paid less than 15 percent. And these people earned, on average, more than 10 times Mr. Romney’s $21.7 million — an average of $270.5 million each.
Relatively few taxpayers pay an enormous percentage of the total federal income tax, and most of them are people who work for a living and have adjusted gross incomes of $100,000 to $500,000, which is the sweet spot for tax revenue. They account for 20.2 percent of total returns but pay a whopping 44.9 percent of total tax. The average tax rate for this group ranges from 11.9 percent for those with less than $200,000 in adjusted gross income to 19.6 percent for those with $200,000 to $500,000. Above those income levels, the rate rises to close to 25 percent and then declines to 22.6 percent for taxpayers earning more than $10 million.
The budget that President Obama unveiled this week included some hot-button tax measures aimed at some of these inequities: capping deductions and raising taxes on people earning more than $1 million (the so-called Buffett Rule), scrapping the alternative minimum taxand raising the tax on dividend income and carried interest. The liberal Economic Policy Institute noted, “No budget is perfect,” but applauded the president’s stab at tax reform. “The need for the Buffett Rule,” it said, “is largely driven by the preferential tax treatment of investment income over work income.”

"Uncertain" Prospects for Legal Industry, Say Citi/Hildebrandt As Law Firms Face Pressure on Profits - Law Blog - WSJ

"Uncertain" Prospects for Legal Industry, Say Citi/Hildebrandt As Law Firms Face Pressure on Profits - Law Blog - WSJ:

By Jennifer Smith

"If you’re a lawyer who likes to wallow in depressing news about the legal industry — this is your week!

“Unfortunately, the economic performance of the industry in 2011… was not able to redress the significant declines experienced in all key financial indicators during the first three years of the economic downturn.”

That’s just one heartening snippet from a 2012 client advisory out Wednesday from Citi Private Bank’s Law Firm Group and the Hildebrandt Institute, a division of Thomson Reuters."

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BP Deepwater Horizon Securities Suit, Though Narrowed, Survives Dismissal Motion : The D & O Diary

BP Deepwater Horizon Securities Suit, Though Narrowed, Survives Dismissal Motion : The D & O Diary:

by Kevin LaCroix

"In the wake of the disastrous April 2010 Deepwater Horizon oil spill, BP was hit with a wave of litigation from plaintiffs asserting claims of personal injury, wrongful death and property damage. The claimants also included BP shareholders raising allegations that they had been misled regarding BP safety efforts and processes. In a 129-page February 13, 2012 opinion (here), Southern District of Texas Judge Keith Ellison, while granting the defendants’ motion to dismiss certain of plaintiffs’ allegations, denied defendants’ motion to dismiss many of the allegations of BP investors who had purchased BP American Depositary Shares (ADS) on the New York Stock Exchange."

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Better Late Than Never | Commonweal magazine

E.J. Dionne, the ubiquitous representative of liberal Catholicism explains in his usual careful way why liberal Catholics objected to the original contraception exemption as too narrow. And why liberal Catholics remain attached to the Church: its prodigious work in service of others. - GWC

Better Late Than Never | Commonweal magazine:

by E.J. Dionne

"One other thing about culture wars: One side typically has absolutely no understanding of what the other is trying to say.
That is why the battle over whether religious institutions should be required to cover contraception under the new health-care law was so painful -- and why it was so hard to comprehend why President Barack Obama, who has been a critic of culture wars for so long, did not try to defuse this explosive question from the beginning.
It's also why he was right, finally, to reach a compromise that respected the legitimate concerns of each side. He should have done this at the outset, but far better late than never.
That so many liberal Catholics supported the church's core claim surprised both Catholic conservatives and more secular liberals. There are lessons here, and that includes lessons for Obama"......

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The Dilemmas of Jewish Power - NYTimes.com

"Israel does not have a public relations problem; it has a policy problem. You can’t sell occupation in a postcolonial age.” That occupation, prolonged in perpetuity, would mean, as President Barack Obama has put it, that “the dream of a Jewish and democratic state cannot be fulfilled.”" - Peter Beinart Peter Beinart

The Dilemmas of Jewish Power - NYTimes.com:

by Roger Cohen

LONDON — Peter Beinart’s “The Crisis of Zionism” is an important new book that rejects the manipulation of Jewish victimhood in the name of Israel’s domination of the Palestinians and asserts that the real issue for Jews today is not the challenge of weakness but the demands of power.
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Rhetoric vs. Reality on Entitlements

Gov. Romney, like his supporter Gov. Chris Christie, focuses much of his rhetoric on the politics of resentment: "we" are paying for "them".  Them usually means people who don't work but instead choose dependency.  This meme goes back a long way, but the Center of Budget and Policy Priorities has assembled facts that show how few facts there are in support of the Romney view.  Jared Bernstein explains the numbers in these charts.