Breaking: Senate Candidate Mickey Kaus Debates Boxer

•May 26, 2010 • 44 Comments

I will post a full account of my brother Mickey’s debate with Barbara Boxer, who failed to appear and was replaced by a cardboard facsimile, after I have finished having dinner with the candidate, or maybe tomorrow. In the meantime, here are exclusive photos, which any site is welcome to use.  Here is the update.

Mickey presented a compelling case that as the party that advocates governmental solutions to problems, Democrats have a special responsibility to provide government that works. A government that produced pensions rather than services is going to cause voters to elect Republicans.

Click here to donate.

Mickey Kaus makes a point during his debate with barbara Boxer, who did not appear.

Mickey Kaus debates a box that stood in for missing Senator Barbara Boxer.

California Senatorial candidate Mickey Kaus debates a box that replaced a missing barbara boxer.

Advertisements

Welcome Back Mark McGwire, Savior of Baseball

•January 17, 2010 • Leave a Comment

“I wish I had never touched steroids. It was foolish and it was a mistake. I truly apologize. Looking back, I wish I had never played during the steroid era.”

Now we officially know that Mark McGwire used Performance Enhancing Drugs (“PEDs”)

What we don’t know with any assurance is who did not use PEDs.

So when Tim Brown of Yahoo attacks Mark McGwire by saying that McGwire “was the steroid era” and that McGwire “wasted our time,” Brown is talking nonsense. Yes, all players did not use steroids, but many, maybe most, did. What made Mark McGwire different was that he was the second best juicer at hitting home runs.

Also, he saved baseball in 1998
. Remember? If he hadn’t, Brown might be writing about a sport with an equivalent stature to hockey.

McGwire is correct to regret being a player in the steroid era. Had there not been a steroid era, McGwire would be in the Hall of Fame already.

The evidence that “everyone” used PEDs is strong. The Mitchell Report identified 89 players who allegedly used. But, we know this was a sampling, not anything near a complete list. Aside from a handful of random people who spontaneously confessed or were accidentally detected, the Mitchell Report only includes those in webs connected to five providers: BALCO, former Met batboy and clubhouse employee Kirk Radomski, former Yankee strength coach Brian McNamee, and two rejuvenation clinics in the South. Fifty two were associated with Radomski, who was required to talk to Mitchell as part of his sentence for money laundering and illegal drug distribution.

Only a fool would believe that all, or even most of the PEDs in MLB came from these five sources. These providers are just the ones who were busted and forced to squeal. You have to believe that there were providers in all major league cities. Think Houston or St Louis. Or the Bash Brothers. McGwire’s use was apparently connected to widespread availability connected to gyms, as presumably was the case with many others. Sammy Sosa, to pick a random name, has not been connected with any of these sources.

In 2002, the Major League Players Association agreed to testing of all players to see if there was a problem. 104 players tested positive, admittedly a group with some overlap to those identified in the Mitchell report. The results were supposed to be kept secret, but some, like David Ortiz and A-Rod, have leaked out since the federal government obtained a copy of the list.

But wait, there’s more. Testing procedures have improved since these 2002 tests. Barry Bonds apparently was not on the original list, but when his sample was retested in 2004 at UCLA, it came back positive. It is unknown how many of the “clean” samples in 2002 would be dirty if retested today. Probably quite a few.

Maybe everyone did not use steroids, but it may be easier to count those who did not. Some others who claim not to have used did their bit by being active in the player’s union’s resistance to effective testing or significant sanctions. All concerned share the blame for enjoying the feats rather than doing anything about the drugs. It is patently unfair to put the onus on McGwire.

He should be back in baseball, as he now is, and because he was an elite player, he should be in the Hall of Fame. His “confession,” while inartful, has far more truth than A-Rod’s or Ortiz’s. Time to accept him and move on.

Who knew?

1990

2010-01-14-1990mac

1998

2010-01-14-1998Mac

Fighting Sotomayor, Republicans Falsely Advance Fire Fighter Ricci as the White Man’s Rosa Parks

•July 13, 2009 • 3 Comments

When the Senate hearings on the nomination of Judge Sondra Sotomayor for the U.S. Supreme Court start Monday, one focus will be the case of Ricci v. New Haven. In Ricci, Judge Sotomayor concurred in a Court of Appeal opinion that affirmed a lower court decision that the New Haven Civil Service Board (“CSB”) was entitled to hold a new exam when it determined that the old exam measured skin color more than it measured qualifications to be a lieutenant or captain in the New Haven Fire Department.

The Court of Appeal decision is not unsympathetic to Ricci. It just holds that the CSB had the discretion to hold a new test in light of the clear disparate impact and the evidence that the test was not sufficiently job related to provide justification.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

What Judge Sotomayor did not know was that the Supreme Court would use Ricci as a white person’s manifesto, holding that acts taken to combat discrimination should be suspected as acts “because of race,” that themselves must be justified by “strong evidence.” In practice, the Supreme Court actually applied the dubious and unachievable “enough evidence to leave Justices Scalia and Alito without any doubt” test.

In fact, the Ricci decision that Judge Sotomayor joined in affirming was unremarkable. The New Haven Fire Department, once virtually all white like many fire departments, has progressed by 2003 to 30% African-American and 16% Hispanic. However, the lieutenant and captain positions remained disproportionately white, with the senior officers 9% African American and 9% Hispanic. Only one of 21 captains was an African American. For reference, the overall population of New Haven was 40% African-American and 20% Hispanic.

Against this background, New Haven commissioned new tests for Fire Department lieutenant and captain. Apparently, the tests were multiple choice. It is unlikely that such memorization tests truly discern whether a person has what it takes to be a fire department officer, which has been described as “steady command presence, sound judgment and the ability to make life-or-death decisions under pressure.”

The results were racially disparate with African-Americans and Hispanics passing at a rate of half or less than Caucasians. Because promotions had to be made from the top three on each test, although there were qualified African-Americans and Hispanics from the testing, the 8 new lieutenants would all be white and two Hispanics and no African Americans would be eligible for the 8 captain positions.

This is a classic case of “disparate impact,” in which whites did disproportionately better than minorities. Intent is irrelevant given the result, and under established law, such a result can be justified only if the test can be shown to actually measure the characteristics needed to be a fire department officer. Ricci’s lawyers and the Supreme Court majority acknowledge this standard.

As a practical matter, previous tests in New Haven had resulted in somewhat more eligible minority candidates and different tests in nearby Bridgeport had resulted in minority firefighters holding one third of the lieutenant and captain positions. The question thus was whether the New Haven test measured job related qualifications or not.

The CSB held several hearings, listening to testimony from the company that developed the test, experts and others. If you read the trial court opinion and all of the Supreme Court opinions, it is hard to avoid the conclusion that there was enough evidence to support a decision to use the test and also, certainly, enough to support designing a new test.

The company that developed the test appears to have gone about it in a thoughtful way, but some questions were inappropriate and the 60% weighting of the written part of the test, based on the collective bargaining agreement with the white dominated union, was inherently questionable. Bridgeport for example, placed greater weight on the oral portion to reflect the real life conditions of firefighting and resulting in more even performance among ethnic groups.

Eventually, the CSB deadlocked 2-2, meaning that the test was not approved and a new one would be developed and held. This decision was upheld by Judge Sotomayor’s court as reasonably supported by the evidence.

Justice Ginzburg, speaking for three other Justices in her heartfelt Supreme Court dissent, goes over the hearings and the reasons given by the CSB members, one of whom was predisposed to approve the test, but ultimately changed his mind. She convincingly describes a thoughtful decision by a deliberative body that she, and Judge Sotomayor thought should be upheld.

Justice Kennedy and four others disagree. They characterize the decision to hold a new test as a race based action that must be justified by “strong” evidence. In their Sean Hannity world, attempts to ameliorate historic racism actually are discrimination themselves and civil service tests that mainly measure race and not qualifications are just a fact of life. Mr. Ricci, or at least some white people, since his performance on the test did not guarantee a promotion, somehow obtained a vested right to become fire department officers even though half of the CSB felt that the test could not be sufficiently related to job skills to justify the unquestioned discriminatory effect.

But wait, there’s more. Justice Alito, joined by Scalia and Thomas, blames the whole kafuffle on a black reverend who argued colorfully for the test to be thrown out and that for too long, the senior officers in the New Haven Fire Department had been white, and, perhaps, white Italian-Americans. These three strict constructionists assume and assert that the CSB knuckled under to this pressure. Apparently one does not need “strong evidence” to make these kinds of charges.

Although this sort of scared reasoning may appeal to white workers looking for a scapegoat for their lot in life, we expect more of Supreme Court Justices. Sean Hannity more or less held a victory parade for Frank Ricci and the “New Haven 20.” Pat Buchanan and George Will weighed in on behalf of white people.

Of course, Judge Sotomayor was right on this on as were the four dissenters on the Supreme Court. There was plenty of evidence to support the CSB decision to seek a test that would better measure job qualifications.

2009-07-12-NAAX953_NHAVEN_G_20090528170117.jpg

Right to a multiple choice test vindicated.   AP Photo

But what about nice Mr. Ricci, the dyslexic Italian American lionized by Charles Krauthammer and others as the victim? Like Joe the Plumber, Ricci is not quite what he seems. As Dahlia Lithwick reported Friday, Ricci has made something of a career of being aggrieved. When he was not hired in 1995 by the New Haven Fire Department as a 20 year old (as 1 of 795 candidates seeking 40 jobs), he sued, claiming that the reason he was not among the elite was that he had mentioned his dyslexia during an interview.

The suit settled in December 2007 and Ricci received a job in the New Haven Fire Department and $11,000 in attorneys fees, This was a good thing for Ricci because he seems to have been fired by Middletown’s South Fire District in August 1997. The reasons were not disclosed, but Ricci charged it was because the union had appointed him to investigate safety conditions at a fire.

In 1998, Ricci challenged his Middletown dismissal and started a campaign asserting that the fire chief’ was not qualified for his position. The Connecticut Department of Labor Investigation ruled that Ricci’s firing was justified. Ricci vowed to challenge his termination in court, but it is unclear if he ever did so.

This was the start of Ricci against the world. The news articles quote Ricci extolling his own credentials. I am just relying on what is in the newspaper, but Ricci’s New Haven complaint filed on January 19, 1995 says he was twenty years old on that date and a Hartford Courant article on August 8, 1997 says he had 8 years firefighting experience in Maryland before joining the Middletown department “according to sources within the fire department.” Figuring like Columbo, this would mean that he joined the fire department during middle school. I end up pretty confused.

Ricci is such a hero that the Republicans are going to call him to testify. This is a delicate subject, as can be seen by the comments that Lithwick’s article has drawn, but Ricci has fought his fourteen year battle against discrimination in public, and it is only fair to examine whether he really is a victim, both as a matter of Constitutional law and personally. Or is he exactly the type of litigious individual that Republicans rail against. No problem there, but they may have trouble getting their story straight.

In fairness, the Hartford Courant reported in November 1998 that Ricci saved a woman’s life as a New Haven fire fighter. I do not question that he is a brave and skilled fire fighter. I question whether he has a lawsuit that should make him the white man’s hero.

But I digress, annoyed by Fox News and its ilk. The real question is whether Judge Sotomayor should be affirmed. As the above indicates, on Ricci, she is in line with four of the nine current members of the U.S. Supreme Court. It is not she who is starting a race war. Those who insist that actions may not take race into account, even to remedy situations where minorities are clearly disadvantaged, are the true activists, thwarting the Civil Rights Act and the Constitutional provisions on which it is based.

Sadly, Attorney Susan Jordan Has Been Killed in a Plane Crash

•June 3, 2009 • Leave a Comment

This morning’s paper brought the sad news that Susan Jordan, one of our most courageous and resourceful attorneys, was killed last Friday in a private plane crash in Utah. Aside from Susan’s successes in individual cases, her forty year legal career empowered both women attorneys and women crime victims.

Susan made an indelible impression on me when I first saw her in court in 1973. She was one of a group of lawyers representing a group accused of robbing the Bank of America at Adeline and Ashby in Berkeley. The attorneys for the defense were five men in dark suits and Susan, resplendent in a vivid blue western style pantsuit with red piping that, I was told, she had made herself. The issue was bail and Susan dominated the courtroom as if there had been a spotlight on her.

Susan was probably most famous for her representation in the 1970s of Inez Garcia, a Latina who, under circumstances that appeared to fall short of classic self defense, shot and killed a man who had previously raped her. Garcia became a feminist symbol of resistance to male domination, but at her homicide trial, Garcia’s attorney Charles Garry unsuccessfully advanced a politically weak diminished capacity argument. Garcia was convicted of second degree murder. After a reversal on appeal, Susan took over for the retrial, ditched diminished capacity and went for broke, successfully arguing self-defense.

Personally, I worked on a case with Susan in the early 1990s and had two memorable flights in her airplane. The first was a trip to Chico to visit an expert on an impossibly spectacular day. I felt like I was living one of those PBS Over California programs.

The second flight, from Santa Rosa to Oakland, was somewhat more nervous, at least for me. After we were about halfway, the radio went out. Eventually we discovered that if I reached under the dashboard and pinched two wires together, the radio went back on, sort of. In truth, Susan was the most careful of pilots, going over a checklist before each flight that other pilots disdained, and I did not feel unsafe at any time. Apparently, she was not flying the plane on Friday.

I last saw Susan at a Saturday morning spinning class a couple of months ago. She left a bit early and I did not get to say hello, which, of course, I now regret.

Susan in a 1999 newspaper photo.

Susan in a 1999 newspaper photo.

(Photo by John Burgess, Santa Rosa Press Democrat)

Sadly, Attorney Susan Jordan Has Been Killed in a Plane Crash

•June 3, 2009 • Leave a Comment

This morning’s paper brought the sad news that Susan Jordan, one of our most courageous and resourceful attorneys, was killed last Friday in a private plane crash in Utah. Aside from Susan’s successes in individual cases, her forty year legal career empowered both women attorneys and women crime victims.

Susan made an indelible impression on me when I first saw her in court in 1973. She was one of a group of lawyers representing a group accused of robbing the Bank of America at Adeline and Ashby in Berkeley. The attorneys for the defense were five men in dark suits and Susan, resplendent in a vivid blue western style pantsuit with red piping that, I was told, she had made herself. The issue was bail and Susan dominated the courtroom as if there had been a spotlight on her.

Susan was probably most famous for her representation in the 1970s of Inez Garcia, a Latina who, under circumstances that appeared to fall short of classic self defense, shot and killed a man who had previously raped her. Garcia became a feminist symbol of resistance to male domination, but at her homicide trial, Garcia’s attorney Charles Garry unsuccessfully advanced a politically weak diminished capacity argument. Garcia was convicted of second degree murder. After a reversal on appeal, Susan took over for the retrial, ditched diminished capacity and went for broke, successfully arguing self-defense.

Personally, I worked on a case with Susan in the early 1990s and had two memorable flights in her airplane. The first was a trip to Chico to visit an expert on an impossibly spectacular day. I felt like I was living one of those PBS Over California programs.

The second flight, from Santa Rosa to Oakland, was somewhat more nervous, at least for me. After we were about halfway, the radio went out. Eventually we discovered that if I reached under the dashboard and pinched two wires together, the radio went back on, sort of. In truth, Susan was the most careful of pilots, going over a checklist before each flight that other pilots disdained, and I did not feel unsafe at any time. Apparently, she was not flying the plane on Friday.

I last saw Susan at a Saturday morning spinning class a couple of months ago. She left a bit early and I did not get to say hello, which, of course, I now regret.

Has Chris Matthews Learned Anything Since He Worked for Tip O’Neill?

•April 23, 2009 • Leave a Comment

Anyone who thought that they would obtain incisive coverage from Chris Matthews of all the torture news that is breaking was in for a disappointment Wednesday. Matthews does not know anything, so he shows old film clips, takes offense and yells.

The first segment featured the usual; a Republican, Senator John Ensign and a Democrat, Rep. Debbie Wasserman-Schultz. Matthews questioning of Ensign was infuriating because Matthews apparently does not know what anyone who read The Dark Side by Jane Mayer knows, which is that the abuses at Abu Ghraib were caused by the importation of Gitmo interrogators and contractors to teach so-called interrogation techniques at Abu Ghraib.

Thus, Matthews let Ensign continually distinguish between “abuses” at Abu Ghraib and interrogation. As Joan Walsh pointed out later in the show, this is abject nonsense. The interrogators, as unqualified as they were, brought these “techniques” to Abu Ghraib and taught them to the so-called rogue soldiers.

Matthews could not dispute Ensign’s nonsense because he does not know the most basic facts. Instead he spent the time being offended that Ensign accused Matthews of being “inflammatory” for reading from the Senate committee report that confirmed Mayer’s reporting.

Turns out it is not difficult to tell Matthews something he does not know!

And while we are at it:

– Did Wasserman-Schultz and Ensign appear separately because Ensign insisted on it? Just asking.

– Why did Matthews let Ensign get away with calling the report a “Democrat” report when the adjective is Democratic. This is some kind of Republican stunt to imply that the Democratic Party is not democratic. Ensign said it about ten times and Matthews never mentioned it and even adopted the word. He was to busy faking offense at being called inflammatory, which of course is all that he is.

And that is just the first segment.

(No transcript is available; right now,)

Athletics Owner Lew Wolff Wants Baseball in Oakland to Fail

•March 29, 2009 • Leave a Comment

The ownership of the Oakland Athletics does not really want fans to come to the ballpark. There is no other way to explain the systematic downgrading of the experience of attending a game and the As’ refusal to provide the amenities that fans of every other team take for granted.

Since they came to Oakland in 1968, the Athletics have won four World Championships, have been in two other World Series and have been in the playoffs several more times. During the late 1980s, when the Bash Brothers As were in three straight World Series and four straight playoffs, attendance was over 2.5 million for three straight years and over 2 million for six straight years. No one ever confused the Oakland Coliseum with Fenway Park, but it became an enjoyable place to watch a game. In 1983, Roger Angell described it in glowing terms in a New Yorker article about baseball in Oakland. The As led the way in the Bay Area with varied food, particularly Saag’s sausages, that was way ahead of the rival Giants’ offerings at Candlestick Park.

But then, In 1995, after the death of owner Walter Haas, the team passed to some local home builders and then to Lew Wolff, a hotelier who is the present owner. Lew Wolff does not want to own a team in Oakland, home of the Bloods and the Crips and police murders. He wants to own a team in San Jose, gateway to Silicon Valley. So while making a passable effort to put a decent team on the field, Mr. Wolfe has set about to publicly denigrate baseball at the Coliseum and is apparently happy to have the ballpark fall down around everyone’s ears. He called the stadium “despicable” when he bought the team, even as he claimed to want to stay in Oakland, and has continued to bad mouth it and let it rot ever since. Wolff shows nothing but contempt for Oakland’s present fans as he eyes the golden wallets of Santa Clara County.

The Coliseum has always been a mass of grey concrete (Sal Bando called it the Mausoleum), but there were TV screens at the concession stands and reasonably modern scoreboards. No longer. The TVs are few and far between and you cannot see the field while you wait. Combined with the indifferent “service” from the food servers, you can stand in line for two claustrophobic innings and not see a pitch or even hear a broadcast. And the food is awful, particularly in comparison to the offerings at AT&T Park across the Bay. It is embarrassing to bring a Giants fan to a game. The staple is doughy hot dogs wrapped in tin foil. There are some specialty foods, but they taste like rubber. The only bright spot is some decent beer. All the while, Wolff denigrates the place and drives people away. Recently, in a press release, he referred to the Coliseum as “an aging and shared facility” and provided the following upbeat description of baseball in Oakland:

We understand the facility continues to cost the city of Oakland and Alameda County millions of lost dollars per year. Sadly, the business and corporate base of the city of Oakland was very limited when we purchased the team and has eroded since. Our attendance and low number of season ticket holders (both one of the lowest in Major League Baseball) also continues to decline; even when our on-field performance produced play-off participation.

Of course, the As have been nowhere near the playoffs the past two years, but the fact is that if the As put a little effort into the ballpark, maybe got on a radio station that fans actually could hear and cultivated the fans in the entire East Bay, including prosperous Contra Cost County immediately to the east, this team could be a success. This would require investing money in a stadium that is owned by Alameda County, but the As rent it for peanuts and could put a shekel or two into the place.

Don’t get me wrong, Oakland officials, and particularly former mayor and life-long baseball hater Jerry Brown, have a lot for which to answer. But Lew Wolff is the one who is destroying Oakland baseball right now. Soon we will be back to the days of Charlie Finley, who owned the team for five straight playoffs and three straight World Championships. He had a bare bones staff and offered a total lack of amenities. In 1974, the year of the As third straight World Series victory, the total attendance was 845,693. It will be difficult for Wolff to reach this goal, but if he fails, it will not be for lack of effort.

not-a-fun-day-1

Not a fun day at the ballpark

UPDATE: Ray Ratto tells Wolff that a vow of silence should last more than a week.