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Thursday Morning Open Thread

Big Tent Democrat — 2009-01-08T11:15:01-05:00

For those interested in things not college football, here is an Open Thread.

The College Football National Championship Game: Gators v. Sooners

Big Tent Democrat — 2009-01-08T08:51:33-05:00

Tonight, the Fighting Gators of the University of Florida (UF) meet the Sooners of the University of Oklahoma (OU? Why isn't it UO?) for the BCS college football championship. The winner of this game will be voted number 1 in the Coaches Poll (the coaches of Texas and Utah have stated they will not follow the rules of voting (which they agreed to) and will vote their teams number 1, hopefully this leads to the end of the Coaches Poll, which is a travesty of conflict, even though it will not change the result of the poll) and likely the AP Writers' Poll.

What to expect tonight? If you care about this game, you already know that Oklahoma scored over 700 points this year, averaging 54 points and 540 yards of offense per game. Florida was not shabby on offense, averaging 45 points and 445 yards per game. Florida's defense was much much better than Oklahoma's during the season, both in terms of points and yards allowed. More . .

The Southeastern Conference, season in and season out, is the best conference in college football. This year the SEC seems to be a bit down. The Big 12 appeared to be having an up year, before the bowl results came in. It now appears the Big 12 was not as good as advertised. That said, I think Oklahoma is as good as advertised - on offense. The Oklahoma defense has to be considered a big question mark.

On paper, it seems to me the oddsmakers have the betting line about right - Florida a 4 to 5 point favorite. But bowl games have a way of surprising you. The keys to the game tonight are, in my view:

(1) No turnovers for Oklahoma, turnovers by Florida. Oklahoma can not turn the ball over. If Bradford throws a bushel of interceptions or if the OU backs leave the ball on the ground, it seems to me that not only has Florida proven to be opportunistic when opponents turn the ball over, Florida has been very efficient in the red zone (inside the opponent's 25 yard line) - they score TDs, not kick FGs. this is anther way of saying the Oklahoma has to be efficient with its possessions. To win this game, in my view, Oklahoma has to score over 40 points. I do not believe its defense can hold Florida to less than 35. On the other hand, I can see Florida's defense holding Oklahoma to 4 touchdowns.

(2) No special teams TDs. Oklahoma can not allow Florida to score on its special teams. The Oklahoma defense will have enough trouble stopping Florida from the line of scrimmage. It can not allow special teams or defensive TDs from Florida. Seems obvious I know, but it is my view that Oklahoma will have a lot of trouble even slowing down Florida from from the line of scrimmage. Here's why:

(3) Florida's running game. Florida averaged 6.0 yards per carry (playing in the SEC) compared to Oklahoma's 4.8 per carry (while playing in the defenseless Big 12.) Florida has the much better running game in my view - especially if . . .

(4) Percy Harvin is really healthy. The most explosive player in the game, if he is healthy, will be Percy Harvin. Harvin averaged 8.8 yards per carry (as well as 17 yards per reception) and scored 16 touchdowns. While missing 3 games. The flip side of a healthy Harvin is the fact that Oklahoma will be missing its fine running back DeMarco Murray. I believe Oklahoma will have trouble running the ball against Florida. Which puts it all on the shoulders of . . .

(5) Sam Bradford, the Oklahoma QB and the Heisman trophy winner. Bradford is finishing one of the most remarkable seasons ever turned in by a college QB. He threw for 48 TDs, completed 68% of his passes and averaged over 10 yards per pass attempt (compared to Tebow's 28 TDs, 65% completion rate and 9.3 yards per pass attempt.) Bradford is the real deal and he has tremendous receivers - especially TE Jermaine Gresham, who causes big matchup problems for any defense.

However, Florida has the best pass defense Bradford will face all year. The coverage will be better than anything Bradford has seen. The biggest question for the Florida defense will be how well its front can put pressure on Bradford, who basically has not been touched the entire season in the pocket. This is not a vintage Florida front line. It will be interesting to see if Oklahoma exploits potential Florida blitz packages.

For Oklahoma to win, in my view, Sam Bradford will have to play possibly the best game of his career. The Oklahoma running game will be suspect. The Oklahoma defense is suspect. And the Oklahoma special teams are just bad.

If this is Sam Bradford's night, Oklahoma will have a good chance to win. Otherwise, I think Florida wins.

I think the Gators win it tonight. I certainly hope they do. Go Gators!!

Speaking for me only

Plastic Surgeon Gets a Year For Third DUI

Jeralyn — 2009-01-08T01:47:25-05:00

Remember Dr. Jan Adams, the plastic surgeon who operated on Kanye West's mother the day before she died?

Adams was sentenced to a year in jail yesterday following his guilty plea to misdemeanor drunk driving. Why so much time? It was his third D.U.I. and he was still on probation for one of them when he caught the last one. (Medical examiner board complaint here (pdf.) Despite the board's recommendation that his license be suspended due to the alcohol offenses, it appears when his license was suspended this June, it was for failure to pay child support. His ex-wife got a restraining order against him alleging spousal abuse.

Adams asked to begin serving the sentence immediately.

Wednesday Night Open Thread

Big Tent Democrat — 2009-01-07T22:11:33-05:00

Your turn.

Update (TL): I've been gone all day, I'm just catching up now. Today's headlines seem like the same as yesterday's to me so right now I have nothing to add. What am I missing?

One new story: Chris Matthews decided against running for the Senate.

To Get Paid To Write Nonsense . . .

Big Tent Democrat — 2009-01-07T15:40:28-05:00

. . . has not been my fate. I do it for free. On the other hand, Rick Reilly gets paid for it:

Some gifts people give are pointless: Styling mousse to Dick Vitale. An all-you-can-eat card to Kate Moss. The BCS Championship given to Oklahoma or Florida. It means nothing because the BCS has no credibility. Florida? Oklahoma? Who cares? Utah is the national champion. The End. Roll credits.

More . . .

Eventually Reilly gets to a good point - we need a playoff in college football. But he starts from a ridiculous one - Utah is the national champion. Couldn't we just have gotten to the playoff argument without the Utah is the national champion nonsense? Here is Reilly's good point:

Call Myles Brand, president of the asleep-at-the-wheel NCAA, and ask him if he and his greedy presidents are going to stand in defiance of president-elect Barack Obama, who wants a playoff and wants it yesterday.

That's the point here. And it was BEFORE Utah beat Alabama in the Sugar Bowl. College football needs a playoff.

Speaking for me only

HuffPo: Obama told Senate Dems To Seat Burris

Big Tent Democrat — 2009-01-07T12:37:46-05:00

HuffPo reports that Senate aides are saying that President-Elect Obama reversed his view on the seating of Blago appointee Roland Burris and recommended to the Dem Senate caucus that Burris be seated:

The apparent decision to seat Roland Burris came after aides to President-elect Barack Obama contacted senior Senate Democrats and suggested that they reverse course and accept Gov. Rod Blagojevich's controversial appointment, according to a senior Dem congressional aide.

Let the fingerpointing begin.

Speaking for me only

Senate Dems Blunder On Blago/Burris

Big Tent Democrat — 2009-01-07T12:16:45-05:00

Unlike John Cole, I thought the Senate Dems were taking the proper course, as a matter of law and politics, in not seating any appointment to the vacant Senate Illinois seat by Illinois governor Rod Blagojevich, who has been credibly accused of trying to sell the appointment. But Cole is right about this:

Harry Reid has now, according to this [Gallup] poll . . . helped create popular support for Burris to not be seated. Since Burris will be seated anyway, these people will be pissed, Reid will look like a clown for being rolled over and put in his place by Blagojevich, and Republicans, with an assist from the Democrats who ran around calling Burris tainted for several weeks, will now claim Democrats are just as corrupt as Republicans. . . You couldn’t game out a worse scenario for the Democrats . . . If you could be sued for political malpractice, I would be leading a class action suit against the Democratic leadership right now.

More . . .

Once the Senate Dems announced their principle that any Blago appointed was tainted, they are stuck with it. Seating Burris now is the worst possible step politically. If he was going to be seated anyway, then Dems should never have staked out a position. Political malpractice indeed.

Speaking for me only

The Blago/Burris Drama Only Begins

Big Tent Democrat — 2009-01-07T11:00:31-05:00

UPDATE - Press conference to begin momentarily. Reid and Durbin at the mike. Brings up "the entire Senate will have to act on this." I think he'll make sure everyone goes on the record on this one. Burris won't be seated today. But reading the tea leaves, it is clear that Burris WILL be seated. The question is how bad will the Democrats in the Senate look in the process. They focus on the Illinois Secretary of State signature. Silly stuff. And insuring that Franken will not be seated until the Minnesota Senate contest is finally resolved.

With the reports that the Senate has capitulated to Illinois governor Rod Blagojevich, credibly accused of trying to sell the appointment of an Illinois Senate seat, by seating Roland Burris, many are stating the drama is over. I beg to differ. The drama is only beginning.

More . . .

Blagojevich is going to be impeached and removed from office. His appointment of Burris will be tainted by that fact. Blagojevich is going to be indicted and tried. His appointment of Burris will be tainted by that fact.

The drama is only beginning. And it will be unpleasant drama for the Democrats now. It will be about corrupt Democrats and their appointees. Good luck with the end of the drama. The 2010 Illinois race for Senate starts today. The Democrats run a real risk of losing it if Burris is the nominee.

Speaking for me only

MN-Sen: Is Coleman Asking For A Full Recount In His Contest Petition?

Big Tent Democrat — 2009-01-07T09:55:23-05:00

When I contemplated Norm Coleman's contest of the Minnesota Senate result, I assumed he would make discrete specific challenges (i.e. - specific rulings on objections to the determination of election judges, the exclusion of certain rejected absentee ballots, the inclusion of certain duplicate ballots, etc.) to the result certified by the Minnesota Canvassing Board. But reviewing Coleman's motion for contest and Notice of Contest (PDFs), it appears Coleman is asking for a new full recount, to be performed by 3 designated inspection officials (one Coleman inspector, one Franken inspector and one neutral inspector). Then all disputes will be submitted to the Inspection Panel.

It looks as if Coleman wants to drag this out as long as possible. The disputes are already known. It is the disputes that should be the subject of the contest. Instead Coleman is requesting a complete recount do-over. I assume the Election Panel can reject this request and proceed immediately to the disputes. I certainly hope they do.

Speaking for me only

Wednesday Morning Open Thread

Big Tent Democrat — 2009-01-07T08:49:54-05:00

One day till this year's Game of the Century. Tomorrow I will provide a comprehensive preview of the Florida-Oklahoma game. It's what you would expect from the top college football covering law and politics blog.

It won't be objective of course. Go Gators!

This is an Open Thread.

Senatorial Minimalism?

Big Tent Democrat — 2009-01-07T08:44:49-05:00

At this point, it seems there is a good deal of doubt about whether the Senate truly believes that a Senatorial appointment by Illinois governor Rod Blagojevich is so tainted that it should exercise its power under Article 1, Section 5 of the Constitution and not seat Roland Burris. If that is so, then this controversy should be brought to an end and Burris should be seated forthwith. I would disagree with the Senate's assessment, but the Constitution provides that power to the Senate, not to me. I do disagree with the argument presented by Walter Dellinger for Senatorial minimalism:

It is only a decision to exclude Mr. Burris that would lead to a continuing dispute about whether the Senate had the authority to reject the choice of a sitting governor. The Senate can avoid this constitutional quagmire entirely by agreeing to seat Mr. Burris, a respected public servant no one has accused of any wrongdoing.

Mr. Dellinger clerked for Justice Hugo Black when Powell v. McCormack was decided. It is interesting that Dellinger does not discuss the fact that the Court could have avoided the constitutional question and not decided the Powell case, which was moot in its essential question, whether Powell would be seated in the 90th Congress. Dellinger writes:

A similar situation arose in 1967, when the House of Representatives refused to seat Adam Clayton Powell Jr., the outspoken congressman from Harlem accused of personal misconduct involving public funds. I was clerking for Justice Hugo Black two years later when he joined in the Supreme Court decision that the House lacked the power to deal with Powell’s conduct by refusing to seat him.

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

This is an interesting point. Because Justice Black viewed the refusal to seat dissident legislators in England as one of the worst abuses of power, he voted to reach out and decide a case that was basically moot. To wit, Dellinger endorses the Court's "refusal to avoid the Constitutional quagmire" (indeed, the Court went well out of its way to jump into the Constitutional quagmire to decide a mooted case). I would have felt better if Black's strong feelings on the meaning of US Constitution had been his motivation to decide Powell as opposed to his views on the practices in England. In his dissent in Powell, Justice Potter Stewart wrote:

I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception. The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners' prayer for a judicial decree restraining enforcement of House Resolution No. 278 and commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot.

. . . [O]n January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated. Understandably, neither the Court nor the petitioners advance the wholly untenable proposition that the continuation of this case can be founded on the infinitely remote possibility that Congressman Powell, or any other Representative, may someday be excluded for the same reasons or in the same manner. And because no foreseeable possibility of such future conduct exists, the respondents have met their heavy burden of showing that "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., 393 U. S. 199, 393 U. S. 203.

. . . [D]ismissal of Powell's action against the legislative branch would not in the slightest prejudice his money claim, [Footnote 3/25] and it would avoid the necessity of deciding constitutional issues which, in the petitioners' words, "touch the bedrock of our political system [and] strike at the very heart of representative government." If the fundamental principles restraining courts from unnecessarily or prematurely reaching out to decide grave and perhaps unsettling constitutional questions retain any vitality, see Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346-348 (Brandeis, J., concurring), surely there have been few cases more demanding of their application than this one. And those principles are entitled to special respect in suits, like this suit, for declaratory and injunctive relief, which it is within a court's broad discretion to withhold.

"We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations." Public Affairs Press v. Rickover, 369 U. S. 111, 369 U. S. 112. "Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative." Eccles v. Peoples Bank of Lakewood Village, 333 U. S. 426, 333 U. S. 431.

In short, the case Dellinger relies upon is hardly a model of restraint. Quite the opposite. It is ironic to see it used to urge restraint on the Senate.

Speaking for me only

No Crime Bills Among Initial Top Ten Bills for Senate

Jeralyn — 2009-01-06T22:12:54-05:00

American Prospect received a copy of the first ten bills that Sen. Harry Reid will seek to have passed in the Senate.

There's not a crime bill among them.

Democrats now control both houses of Congress with a Democratic president -- for the first time in 16 years.

The House stands at 256 to 178 with one vacancy. If Al Franken is sworn in, Dems will hold 59 seats in the Senate.

Enron's Jeff Skilling to Get Lesser Sentence

Jeralyn — 2009-01-06T18:57:07-05:00

Jeffrey Skilling, sentenced to 24 years in prison in the Enron case, had his conviction affirmed today by the 5th Circuit Court of Appeals -- but the Court said the trial judge erred in his sentencing calculations.

The trial judge bumped Skilling four levels for "substantially jeopardizing the safety and soundness of a “financial institution.” The appeals court said that was improper because there was no evidence the Enron Corporation Savings Plan and the Employee Stock Ownership Plan
are "pension plans" or “financial institutions” and any doubt must be resolved in favor of Skilling. It said "We are unprepared to declare every corporate retirement vehicle a “financial institution.”

Skilling must be resentenced. His guidelines now will be level 36 and Criminal History Category 1 or 188 to 235 months. Since the court initially sentenced him to the bottom of the range, I expect it will do the same on resentencing, resulting in Skilling's sentence dropping from 240 months to 188 months. [More...]

The opinion provides another reason defendants should consider exercising their 5th Amendment privilege against self-incrimination. The trial court increased Skilling's guideline level by two for obstruction of justice -- perjury during his SEC testimony. The Court of Appeals upheld the bump. Had Skilling remained silent, he'd be down another two levels and would be looking at a total of 13 years.

In any event, while Skilling will undoubtedly be disheartened that his conviction was upheld, and a 15 year sentence is still overly harsh in my view, there's no denying 15 years is better than 20 years. His lawyer says he will continue to appeal. Skilling is now serving the sentence at FCI Englewood, near Denver, which is now a low security prison.

The 104 page opininion is here. Skilling was convicted of 19 of the 28 charges against him.

Does Sen. Feinstein Read The Letters She Signs?

Big Tent Democrat — 2009-01-06T18:55:59-05:00

Sen. Diane Feinstein has decided that Roland Burris should be seated:

Sen. Dianne Feinstein rejected the reasoning that all of the chamber's Democrats, herself included, had cited in a letter last week — that corruption charges against Burris' patron, Illinois Gov. Rod Blagojevich, tainted his appointment. "Does the governor have the power, under law, to make the appointment? And the answer is yes," said Feinstein, chairwoman of the Senate Rules Committee, which judges the credentials of senators.

Funny, less than a month ago, Feinstein signed a letter saying the opposite:

Please understand that should you [Blagojevich] decide to ignore the request of the Senate Democratic Caucus and make an appointment we would be forced to exercise our Constitutional authority under Article I, Section 5, to determine whether such a person should be seated.

Begging the question, does Feinstein read the letters she signs?

Speaking for me only

The Problems With The Pro-Blago/Burris Argument

Big Tent Democrat — 2009-01-06T15:13:52-05:00

Problem Number 1, acting, as Erwin Chemerinsky does, if your judgment that the Senate would be ill advised to reject Roland Burris, the Blago Farce appointee, is the equivalent of violating the Constitution. Chemerinsky writes:

The desire of Senate Democrats, and even Obama, to keep Blagojevich from picking the new senator from Illinois is understandable -- a federal attorney arrested the governor on charges of trying to sell the appointment for personal gain. Although Burris is untainted by the scandal, any selection made by Blagojevich is suspect. But the taint of Blagojevich's alleged crimes does not justify ignoring the Constitution.

Not seating Burris, pursuant to the Article 1, Section 5 of the Constitution is the opposite of ignoring the Constitution. It may be that the interpretation of the Constitution forwarded by Senate Democrats is some day found to be incorrect by the Supreme Court. I doubt that day will come. But clearly the Senate is not ignoring the Constitution here. We all can have our judgment on whether it is wise for the Senate to do this, but it is absurd to argue that because the Senate disagrees with your judgment that it is acting unconstitutionally. More . .

Problem Number 2, misstating the HOLDING in Powell:

The Supreme Court's conclusion could not be clearer or more on point: "In short, both the intention of the framers, to the extent that it can be determined, and an examination of basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote."

To take this excerpt from Powell and turn it into the erroneous notion that the Supreme Court has established a firm rule that controls the Burris situation is problematic to say the least. It is wrong in my view. Powell does not militate that Burris can not be excluded based on Article 1, Section 5. In his concurrence, Justice Douglas stated the the rule of the Powell case was the following:

While I join the opinion of the Court, I add a few words. As the Court says, the important constitutional question is whether the Congress has the power to deviate from or alter the qualifications for membership as a Representative contained in Art. I, � 2, cl. 2, of the Constitution. Up to now, the understanding has been quite clear to the effect that such authority does not exist. . . . Contests may arise over whether an elected official meets the "qualifications" of the Constitution, in which event the House is the sole judge. But the House is not the sole judge when "qualifications" are added which are not specified in the Constitution.

(Emphasis supplied.) Clearly Powell concerned the adding of qualifications by a House of Congress beyond those enumerated in the Constitution, not the judging of "elections and returns. The concern of Powell was not about the process by which a representative was chosen, but about the exclusion of a properly chosen representative who was deemed "unqualified" by the House for reasons not enumerated in the Constitution. Justice Douglas, again in concurrence in Powell:

A man is not seated because he is a Socialist or a Communist.

Another is not seated because, in his district, members of a minority are systematically excluded from voting.

Another is not seated because he has spoken out in opposition to the war in Vietnam.

The possible list is long. Some cases will have the racist overtones of the present one. Others may reflect religious or ideological clashes.

At the root of all these cases, however, is the basic integrity of the electoral process. Today we proclaim the constitutional principle of "one man, one vote." When that principle is followed and the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?

(Emphasis supplied.) Roland Burris was elected by no one. Indeed, the basic integrity of the process of Burris' appointment is in serious doubt - in my view, irredeemably tainted.

The man Roland Burris has not been excluded. The appointee of a Governor credibly accused of trying to sell the seat for which he made the appointment is the person excluded. Would Professor Chemerinsky be so worried if instead of discussing a corrupt appointment process, we were discussing a fraudulent election? What would be the Constitutional principle behind that distinction?

Personally I doubt this episode will be a precedent for much of anything. But let's suppose for a moment it is a precedent for all posterity. Is it, as Chemerinsky thinks:

creat[ing] a dangerous precedent. It could open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext. If Burris -- whose appointment meets the legal test, no matter what you think of Blagojevich -- is not seated, other properly elected (or appointed) representatives also are at risk.

Or is it creating a narrow precedent that blocks an appointment by a Governor credibly accused of having tried to sell the very appointment he is trying to make? I think it is the latter.

I would also ask this question - would seating Burris create a dangerous precedent whereby the Senate must accept all "lawful appointees" - even those garnered by corrupt means? As a Constitutional question, what is the difference in the Constitutional power exercised by the Senate in either case?

It is not unconstitutional or wrong to have a different judgment than Erwin Chemerinsky regarding when the Senate should use its power pursuant to Article 1, Section 5. Disagreeing regarding the wisdom of its use is not the same thing as saying such use is unconstitutional. Chemerinsky, like many pro-Burris commenters, conflate the two. Chemerinsky, like other pro-Burris commenters, is wrong too.

Speaking for me only